ELLEN DEMASO, APPELLANT,
v.
JAMES FREDERICK DEMASO, APPELLEE
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The appellate court affirmed the child custody award to the father but reversed the award of attorney's fees to the mother.
The mother appealed the trial court's award of custody of the parties' son to the father. The father cross-appealed the award of attorney's fees to th…
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PER CURIAM.
Petitioner, Ellen Demaso, appeals that provision of a dissolution of marriage judgment awarding custody of the parties’ eight year old son, Anthony, to the father, James Demaso.
Ellen contends the trial judge erred in awarding custody of Anthony to his father because there was no finding that she is unfit and all factors being equal, the mother of infants of tender years should receive prime consideration for custody. See Anderson v. Anderson, 309 So. 2d 1 (Fla.1975).
It is the duty of the trial judge in a child custody proceeding to determine what is in the best interest of the child and absent a showing of an abuse of discretion (which requires a lack of substantial evidence to sustain the judge’s determination), an appellate court will not disturb the custody award. Ross v. Ross, 321 So. 2d 443 (Fla.3d DCA 1975) and cases cited therein. There was substantial competent evidence presented in this case to support the award of custody to the father and we find no abuse of discretion.
On cross-appeal James Demaso urges as error the award of an attorney’s fee to Ellen based solely on two affidavits without any prior notice of hearing or any hearing conducted thereon. We find this point well taken and reverse the attorney’s fee award.
No hearing was held or testimony adduced on the issue of attorney’s fees, thereby precluding James his right to contest Ellen’s claim to such fees. See Thoni v. Thoni, 179 So. 2d 420 (Fla.3d DCA 1965); Goldblatt v. Goldblatt, 277 So. 2d 34 (Fla.3d DCA 1973); Reek v. Reek, 303 So. 2d 677 (Fla.4th DCA 1974). The cause is remanded to the trial court for the taking of testimony on the issue of attorney’s fees.
Affirmed in part, reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
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Geraci v. Kozloski, 377 So. 2d 811 (Fla. 4th DCA 1979)…s this the determination of an attorneys fee for the mortgagee based upon affidavits over objection of the mortgagor is improper. Evidence should be adduced so that the full range of cross examination will be afforded both parties. Demaso v. Demaso, 345 So. 2d 391 (Fla. 3rd DCA 1977); Thoni v. Thoni, 179 So. 2d 420 (Fla. 3rd DCA 1965); cf. Mullane v. Lorenz, 372 So. 2d 168 (Fla. 4th DCA 1979). Appellees filed cross assignments of error directed to two orders of the trial court, entered post final judgment on…
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Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990)…statute permits a court to award attorney fees sua sponte, the court must nonetheless give notice to the party against whom award will be made, and afford an opportunity to review and rebut the reasonableness of any amount claimed. Demaso v. Demaso, 345 So. 2d 391 (Fla. 3d DCA 1977). An opportunity to adduce testimony and rebut must be afforded before entry. Gables Ins. Agency, Inc. v. Peninsula Federal Sav. & Loan Ass’n, 442 So. 2d 1013 (Fla. 3d DCA 1983); Morgan v. S. Atl. Production Credit Ass’n., 528 So.…
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Morgan v. Morgan, 374 So. 2d 60 (Fla. 3d DCA 1979)…PER CURIAM. Both the main appeal and the cross-appeal are affirmed. See, e. g., Herzog v. Herzog, 346 So. 2d 56 (Fla.1977); Shaw v. Shaw, 334 So. 2d 18 (Fla.1976); Corvison v. Corvison, 362 So. 2d 323 (Fla.3d DCA 1978); Demaso v. Demaso, 345 So. 2d 391 (Fla.3d DCA 1977); and McAnespie v. McAnespie, 200 So. 2d 606 (Fla.2d DCA 1967).…
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
- Anderson v. Anderson, 309 So. 2d 1 (Fla. 1975)
- 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)
- Ross v. Jere Sandy Ross, 321 So. 2d 443 (Fla. 3d DCA 1975)
- Goldblatt v. Goldblatt, 277 So. 2d 34 (Fla. 3d DCA 1973)
- Reek v. Caroll Manelvia Reek, 303 So. 2d 677 (Fla. 4th DCA 1974)