HAROLD COLUMBUS FISHER, APPELLANT,
v.
CAROLE ROBERTA FISHER AND ARTHUR E. HUTTOE, APPELLEES
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An attorney is not entitled to fees from the husband in a dissolution proceeding for services rendered to the wife prior to the formal institution of the proceeding if those services were peripheral to the actual dissolution action.
[1] Attorney's fees in dissolution of marriage proceedings are recoverable only for legal services performed in connection with maintaining or defending the proceeding.
[2] Legal services performed prior to the institution of formal dissolution of marriage proceedings are not compensable under statutes authorizing attorney's fees in such pro…
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Join FLexlaw to unlock all legal intelligenceAn attorney consulted by a wife before a dissolution proceeding sought attorney's fees from the husband under Fla.Stat. § 61.16 for services rendered …
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PER CURIAM.
This is an interlocutory appeal filed by the husband Harold Columbus Fisher from an award of a $3,200 attorney’s fees to Arthur E. Huttoe, who was consulted by the wife, Carole Roberta Fisher, just prior to the institution of a dissolution of marriage proceeding between the Fishers.
Huttoe contends on appeal that the award is supported by his testimony at an evidentiary hearing held on the matter, as well as that of an éxpert witness, and no abuse of discretion by the trial court has been made to appear.1
The husband, on the other hand, advances two contentions. First, he asserts that as a matter of law Huttoe was not entitled to an attorney’s fee paid by the husband because the services performed by Huttoe on behalf of the wife were undertaken prior to the institution of formal proceedings for dissolution of marriage.
Therefore, the husband argues that Hut-toe performed no legal services within the purview of Fla.Stat. § 61.16, F.S.A. which would otherwise entitle him to a fee in connection with legal work for “maintaining or defending any proceeding under this chapter . . . ”
As a second point on appeal, the husband submits that even assuming the fee is authorized by Section 61.16, the fee is excessive.
This latter contention rests upon an assessment of the record. Huttoe testified that he performed approximately 24 hours of legal work on behalf of the wife, apparently during a three-day period from December 24 — 27, 1974. The record shows that on December 27, 1974 the husband filed his petition for dissolution of marriage.
Thereafter, on January 9, 1975, the wife, represented by a new law firm, not Huttoe, filed her answer and counterpetition for dissolution of marriage.
In between the husband’s petition and the wife’s counter petition, Huttoe filed on January 3, 1975 his claim for an attorney’s fee in the amount of $3,500, attaching a statement for services.
From our examination of this statement and the record of the testimony, it appears that Huttoe’s claim included the following work: consultation with Mrs. Fisher and another of her former lawyers; review of an antenuptial agreement entered into on April 25, 1974, three days before the Fishers were married; five hours of legal research; and telephone conversations with the husband’s attorney and with Mrs. Fisher. Also, of the legal research, Huttoe testified that a portion of it was devoted to the propriety of an independent tort action against the husband stemming from an alleged assault upon the wife during cove-ture. See Bencomo v. Bencomo, Fla.1967, 200 So. 2d 171; Orefice v. Albert, Fla.1967, 237 So. 2d 142, 145.
The remainder of Huttoe’s research concentrated on legal issues surrounding the antenuptial agreement.
After a careful review of the record and briefs filed in this case, it is our opinion that Huttoe was not entitled to any attorney’s fee from the husband incident to the dissolution of marriage proceeding. Of course, we do not imply that Huttoe may not maintain an independent cause of action against the husband or wife for legal services rendered to her prior to the institution of the dissolution proceeding. See generally, 10A Fla.Jur., Dissolution of Marriage, § 228. Our holding is limited to Huttoe’s standing under the statute.
It is merely our view that Huttoe’s role with respect to the actual dissolution of marriage proceeding was peripheral, and therefore, he was not legally entitled to an attorney’s fee pursuant to Section 61.16. Cf., Spencer v. Spencer, Fla.App.1974, 305 So. 2d 256; Keena v. Keena, Fla.App.1971, 245 So. 2d 665; Scanlon v. Scanlon, Fla.App.1963, 154 So. 2d 899.
The statute providing for attorney’s fee in a dissolution of marriage proceeding must be strictly construed. See Kittel v. Kittel, Fla.1968, 210 So. 2d 1. In the case before us, the only legal service performed by Huttoe which had any connection with the eventual pleadings filed by another law firm for dissolution of marriage was his examination of the antenuptial agreement and some research into the legal validity of the agreement.
We do not believe this connection is substantially related to a dissolution proceeding which from its inception was being handled by another law firm.2
Therefore, for the reasons stated and upon the authorities cited, the order appealed is reversed.
Reversed.
. Huttoe testified that he was entitled to a $3,500 attorney’s fee; his expert, Ray Pearson, testified that a reasonable fee would be $3,600.
. This factor is an obvious and important distinction between this case and this court’s holding in Ochoa v. Ochoa, Fla.App.1973, 275 So. 2d 267, cited by the appellees.
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Rogers v. Cooper, 575 So. 2d 266 (Fla. 1st DCA 1991)…MINER, Judge, dissenting. I respectfully dissent. The statute permitting recovery of attorney’s fees in chapter 61 actions must be strictly construed. Kittel v. Kittel, 210 So. 2d 1 (Fla.1968); Fisher v. Fisher, 318 So. 2d 434 (Fla. 3d DCA 1975). When thus construed, and put in the context of an action to enforce a child support order, it is apparent that section 61.16 and its reference to “both parties,” envisions an action between the party obligated to pay and the part…
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Adler v. Etta Mae Adler and Joan Berk, 365 So. 2d 411 (Fla. 3d DCA 1978)…n the facts as reflected by the record in this case, the attorney’s fees were not within any statutory entitlement and the parties did not agree to this payment. Accordingly, the attorney’s fees were improperly awarded. See, e. g., Fisher v. Fisher, 318 So. 2d 434 (Fla. 2d DCA 1975; and Scott v. Scott, 303 So. 2d 683 (Fla. 4th DCA 1974). Affirmed in part; reversed in part.…
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Fortner v. Gera M. Fortner, 631 So. 2d 327 (Fla. 2d DCA 1994)…wife in her former husband’s probate proceeding. She prevailed on a breach of contract theory. The proceeding was not an action to enforce a final judgment of dissolution. Accordingly, fees under chapter 61 were not appropriate. In Fisher v. Fisher, 318 So. 2d 434 (Fla. 3d DCA 1975), an attorney reviewed an ante-nuptial agreement and did other research for the wife prior to the husband filing for divorce. The attorney did not represent the wife during the divorce proceeding. Because the attorney had never bee…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kittel v. Anne B. Kittel, 210 So. 2d 1 (Fla. 1967)
- Orefice v. Albert, 237 So. 2d 142 (Fla. 1970)
- Carmela Bencomo v. Bencomo, 200 So. 2d 171 (Fla. 1967)
- Keena v. Helge Keena, 245 So. 2d 665 (Fla. 1st DCA 1971)
- Scanlon v. Scanlon, 154 So. 2d 899 (Fla. 1st DCA 1963)
- Spencer v. Mrs. Rochelle Terebelo Spencer, 305 So. 2d 256 (Fla. 3d DCA 1974)
- Ochoa v. Concepcion Ochoa, 275 So. 2d 267 (Fla. 3d DCA 1973)