Dake v. Kirkley, 5D99-3447.
| Decision Date | 06 October 2000 |
| Docket Number | No. 5D99-3447.,5D99-3447. |
| Citation | 767 So.2d 1289 |
| Parties | Gina Lynn DAKE f/k/a Gina Lynn Dake Kirkley, Appellant/Cross-Appellee, v. Andrew P. KIRKLEY, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
William R. Northcutt, of William R. Northcutt, P.A., Indian Harbour Beach, for Appellant/Cross-Appellee.
Douglas D. Marks, of Dean, Mead, Spielvogel, Goldman & Boyd, Melbourne, for Appellee/Cross-Appellant.
The issue in this case is the appropriateness of the amount of the award of attorneys fees.1
After the court found that the husband's net income is $4,195 per month and the wife's monthly net income is $1, 098, it awarded only $2,200 in attorneys fees for the wife even though the court found the reasonable hours expended by the wife's counsel was 135 hours and a reasonable hourly rate would be $175 which would indicate a finding of a reasonable fee of some $23,000.
We cannot tell from the record the basis of the court's award. It is speculated that one reason is that the wife unnecessarily and unreasonably spent time in trying to get permanent alimony for a two-year old marriage. Perhaps that explains some reduction.
It is also speculated that the court reduced the wife's award because she unnecessarily and improperly caused the issue which became so time consuming. In the husband's initial complaint for dissolution, he agreed that custody should be given to the wife with reasonable visitation awarded to him. However, because of the wife's conduct during the first nine months of separation in attempting to prevent or in hampering the father's visitation with the child, the father amended his complaint to seek custody. The court did find that the wife "had a problem sharing visitation and a problem with keeping the petitioner informed of events pertaining to the minor child." If the court found that but for the wife's intransigency the time-consuming issue of custody would not have been raised, a reduction in attorneys fees might well be justified. We agree with the husband that Rosen v. Rosen, 696 So.2d 697 (Fla.1997), contemplates that more than needs and ability should be considered in awarding attorneys fees. Improper conduct of one spouse which creates a need for extensive litigation should also be considered.
It is possible that the court, in finding that the husband owes his own attorney $15,000 to $20,000 and, when considered with the marital debts assumed by the husband and the child support ordered, found...
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Shaw v. Shaw
...has totally misapplied Rosen to the facts reflected in this record. The order here suffers from the problems of both Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000), and Taylor v. Taylor, 746 So.2d 577 (Fla. 1st DCA 1999). The trial court has failed to articulate a sufficient basis for ......
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Dybalski v. Dybalski
...has engaged in “vexatious and frivolous litigation,” Taylor v. Taylor, 734 So.2d 473 (Fla. 4th DCA 1999). See also, Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000) (attorney's fees recoverable under Rosen for improper conduct which causes extensive litigation).Id. at 1201. Specific find......
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Elliott v. Elliott
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...make specific written findings that lawyer did not act in good faith, based on representations of his or her client); Dake v. Kirkley, 767 So. 2d 1289 (Fla. 5th DCA 2000)( Rosen contemplates that more than simply need and ability to pay should be considered in awarding attorneys’ fees; impr......