ISIDORE YAGODA, APPELLANT,
v.
ELLA KLEIN, FORMERLY KNOWN AS ELLA YAGODA, APPELLEE
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In this interlocutory appeal, the Third District Court of Appeal affirmed a trial court's award of $2,000 in attorney's fees to an ex-wife's attorney in a contempt and modification proceeding. The court held that attorney's fees are properly awardable under Florida Statute § 61.16 when a former wife defends against a modification petition affecting her property settlement agreement rights.
The court held that the trial court properly awarded reasonable attorney's fees under § 61.16 to the ex-wife's attorney for defending against the modification petition. The new statute authorizes attorney's fees for initiating or defending modification proceedings, and case law established that fees may be awarded to a wife defending against modification efforts affecting her property settlement rights.
[1] A petition to modify alimony payments derived from a property settlement agreement incorporated into a divorce decree cannot be entertained if the agreement is not suscep…
[2] A statute authorizing attorney's fees in proceedings under Chapter 61 applies to modification proceedings.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the new statute, Section 61.16, added for the first time the provision which authorizes a reasonable attorney's fee for initiating or defending a modification proceeding”
Establishes that § 61.16 expanded the statutory authority for attorney's fees beyond the prior statute
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Join FLexlaw to unlock all legal intelligenceIsidore Yagoda and Ella Klein were divorced by final decree on May 26, 1967, with alimony payments derived from an antenuptial agreement incorporated …
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HENDRY, Judge.
By this interlocutory appeal, Isidore Ya-goda seeks review of an order by the trial court setting an attorney’s fee of $2,000 for his ex-wife’s attorney.
The former husband had filed previously a petition for modification of alimony pay ments resulting from a final divorce decree dissolving the marriage of the parties, entered on May 26, 1967.
The ex-wife also filed a motion for an order of contempt due to the ex-husband’s failure to make the required payments.
The alimony payments were derived from an ante-nuptial agreement between the parties which the court incorporated in the final divorce decree.
The former husband filed his petition for a modification of the alimony payments under Fla.Stat. § 61.14, F.S.A. upon the grounds that the parties had experienced a substantial change in circumstances since entry of the divorce decree.
However, the parties concede that an earlier appeal to this court established that the petition for modification could not be entertained because the payments to the former wife originate from the property settlement agreement which is not susceptible to modification. See, Yagoda v. Klein, Fla.App.1974, 293 So. 2d 734.
Therefore, it is the appellant’s contention now that an award of attorney’s fees to the appellee’s attorney was not “any proceeding under this chapter” as the language appears in Fla.Stat. § 61.16, F.S.A., authorizing attorney’s fees in enforcement and modification proceedings.
Appellant relies principally on the holding in Howell v. Howell, Fla.App.1968, 207 So. 2d 507, decided under the now repealed statute governing attorney’s fees, Fla.Stat. § 61.15, F.S.A.1969, and upon the authority of Kittel v. Kittel, Fla.1968, 210 So. 2d 1, holding that Section 61.15 (now 61.16) should be strictly construed.
We note, however, that the new statute, Section 61.16, added for the first time the provision which authorizes a reasonable attorney’s fee for initiating or defending a modification proceeding. See also, Darcy v. Darcy, Fla.App. 1973, 285 So. 2d 59.
In addition, even under the former statute, this court has held that the trial court may award a reasonable attorney’s fee to a wife who is defending against an effort to modify her rights under a property settlement agreement. Salomon v. Salomon, Fla.App.1966, 186 So. 2d 39; Cf., Ettinger v. Ettinger, Fla.App.1971, 242 So. 2d 502.
Therefore, for the reasons stated and upon the authority cited, the order appealed is affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Payne v. Payne, 481 So. 2d 551 (Fla. 2d DCA 1986)…he court concluded that the property settlement agreement was not legally subject to modification. In support of his position, he cites Bockoven v. Bockoven, 444 So. 2d 30 (Fla. 5th DCA 1983), as a case on point. The wife points to Yagoda v. Klein, 305 So. 2d 29 (Fla. 3d DCA 1974), which held that attorney’s fees could be awarded under section 61.16 for the successful defense of a petition for modification of alimony, even though the petition was dismissed on the ground that the alimony payments could not b…
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Isadore Yagoda v. Klein, 343 So. 2d 948 (Fla. 3d DCA 1977)…PER CURIAM. Affirmed. See: Gordon v. Gordon, 59 So. 2d 40 (Fla.1952); Yagoda v. Klein, 305 So. 2d 29 (Fla. 3d DCA 1974); Yagoda v. Klein, 293 So. 2d 734 (Fla. 3d DCA 1974).…
Authorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Howell v. Howell, 207 So. 2d 507 (Fla. 2d DCA 1968)
- Anne Marlowe Salomon v. Salomon, 186 So. 2d 39 (Fla. 3d DCA 1966)
- Darcy v. Darcy, 285 So. 2d 59 (Fla. 4th DCA 1973)
- Miller v. State, 242 So. 2d 502 (Fla. 2d DCA 1970)
- Copello v. Hart, 293 So. 2d 734 (Fla. 1st DCA 1974)
- Isadore Yagoda v. Klein, 293 So. 2d 734 (Fla. 3d DCA 1974)