JOHN W. LAMAR, APPELLANT,
v.
RUTH GLORIA LAMAR, APPELLEE
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In this post-dissolution modification case, the Florida Fourth District Court of Appeal held that attorney fees cannot be awarded based solely on counsel's affidavits without expert testimony on the reasonableness of fees and services rendered. The court partially affirmed and partially reversed the trial court's modification order imposing conditions on a property transfer.
The court held that attorney fees cannot be awarded without expert testimony regarding the reasonableness of the fees and services rendered. The court affirmed the portion of the modification order conditioning the property transfer on performance of accrued obligations (attorney fees when properly determined, medical bills, and civil service benefits), but reversed the portion conditioning the transfer on future monthly educational payments for the child as exceeding the trial court's discretion.
[1] A trial court may not fix attorney fees based solely on affidavits of work done and fees charged without expert testimony.
[2] A trial court may require a party to a dissolution to provide security to assure the fulfillment of obligations.
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Join FLexlaw to unlock all legal intelligence“a chancellor may not fix attorney's fees without expert testimony.”
Establishes the requirement for expert testimony in determining attorney fees in dissolution cases.
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Join FLexlaw to unlock all legal intelligenceFollowing a final dissolution of marriage, the husband moved to hold the wife in contempt for failing to transfer her interest in certain property to …
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WALDEN, Chief Judge.
Husband appeals from a modification order entered after a final dissolution. We agree with husband’s contention that the trial court should not have ordered him to pay $1,445 for wife’s attorney fees based only upon her counsel’s affidavits of work done and fees charged. In Ortiz v. Ortiz, 211 So. 2d 243 (3d DCA Fla.1968), the court noted:
“. . . a chancellor may not fix attorney’s fees without expert testimony. Lyle v. Lyle, Fla.App.1964, 167 So. 2d 256; Thoni v. Thoni, Fla.App.1965, 179 So. 2d 420.” Id. at 245.
The attorney fees should not have been awarded without testimony from an expert witness.
The modification was made upon the motion of husband to hold the wife in contempt for failure to quit-claim to him her interest in certain property and her subsequent petition to modify. The wife had agreed to transfer her interest in that property to the husband in accord with a property settlement agreement, made a part of the final dissolution. She has not yet transferred that interest. The modification order held the wife in contempt for the failure to do so, and ordered her to execute a quit-claim deed on the property to husband, that deed to be held in trust by her attorney. The deed was to be transferred to husband upon the fulfillment by him of certain directives, including payment of wife’s attorney fees, a dental bill for the minor child, extra monthly schooling funds for the child and the transferraL of certain civil service benefits to wife. We affirm that portion of the modification order making delivery of the deed to the husband dependent upon his performance of duties which had accrued at the time of the modification order, on the grounds that a trial court may require security of a party to a dissolution in order to assure fulfillment of obligations. Stern v. Stern, 75 So. 2d 810 (Fla.1954); Black v. Miller, 219 So. 2d 106 (3d DCA Fla.1969):
“A court in a divorce action may, . require the husband to give security for the payment of alimony or child support.” Id. at 109.
Fla.Stat. §61.11 (1973):
“. . . When either party is about to remove himself or his property out of the state, or fraudulently convey or conceal it, the court may award a ne exeat or injunction against him or his property and make such orders as will secure alimony to the party who should receive it.”
The accrued obligations include the attorney fees (when properly determined), doctors’ bills for the child and civil service benefits due the wife. We reverse, however, as being in excess of the trial court’s discretion, that portion of the modification decree making delivery of the deed to the husband dependent upon making subsequent additional monthly payments for the education and care of the child. Although security may be had for future obligations, we feel that to encumber this property in such fashion would hinder the purpose of the order. The husband would not be able to expect full property ownership until the minor child completed her schooling, and it would render him incapa ble of dealing with the property in such manner as to enable him to fulfill his obligations. We reverse this portion of the modification without prejudice to the trial judge to order such bond or other security as he may see fit to impose to assure compliance.
We find no merit in husband’s remaining contentions.
Reversed and remanded, with directions.
OWEN, J., and ALDERMAN, JAMES E., Associate Judge, concur.
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Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987)…er ⅛ could determine the amount to be awarded in the absence of any evidence. There is no question that trial courts in marital cases have been precluded from assessing the amount of attorney’s fees without an evidentiary basis. See Lamar v. Lamar, 323 So. 2d 43 (Fla. 4th DCA 1975). Indeed, the Third District Court itself has repeatedly emphasized that attorney’s fees may not be fixed without expert testimony and must be based upon competent evidence. See Lee v. Gilbert, Silverstein, and Hellman, 350 So. 2d…
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Stefanowitz v. Stefanowitz, 586 So. 2d 460 (Fla. 1st DCA 1991)…eezing access to the line of credit, the court is ensuring that the alimony award of exclusive use and possession is secure from the possibility of foreclosure on the marital residence. Cases supporting the trial court’s decision are Lamar v. Lamar, 323 So. 2d 43 (Fla. 4th DCA 1975) (security may be had for future obligations); and Sandstrom v. Sandstrom, 565 So. 2d 914 (Fla. 4th DCA 1990) (court may issue injunction to prevent dissipation of marital assets either before or after final dissolution). Appellan…
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Island Hoppers, Ltd. v. Norma Beard Keith for the Estate of Marsha K. Beard, 820 So. 2d 967 (Fla. 4th DCA 2002)…ttorney’s fees must be “substantiated” by expert testimony in addition to that of the lawyer claiming the fee. See Tanner v. Tanner, 391 So. 2d 305, 305 (Fla. 4th DCA 1980); Mullane v. Lorenz, 372 So. 2d 168, 168 (Fla. 4th DCA 1979); Lamar v. Lamar, 323 So. 2d 43, 44 (Fla. 4th DCA 1975). Examination of these cases reveals that the rule requiring the testimony of an independent expert traces back to Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964). In support of the rule announced, Lyle cited no authority; th…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lyle v. Lyle, 167 So. 2d 256 (Fla. 2d DCA 1964)
- Black v. Elliot L. Miller, 219 So. 2d 106 (Fla. 3d DCA 1969)
- Ortiz v. Ortiz, 211 So. 2d 243 (Fla. 3d DCA 1968)
- Famous Brands Distribs., Inc. v. Hoke, 179 So. 2d 420 (Fla. 2d DCA 1965)
- Thoni v. Marine Parrish Thoni, 179 So. 2d 420 (Fla. 3d DCA 1965)
- Morton Stern v. Stern, 75 So. 2d 810 (Fla. 1954)