Dresser v. Dresser

• Court: Florida District Court of Appeals
• Writing for the Court: SMITH; MILLS, Acting C. J., and ERVIN
• Citation: Dresser v. Dresser, 350 So.2d 1152 (Fla. App. 1977)
• Decision Date: 26 October 1977
• Docket Number: No. FF-212,FF-212
• Parties: William George DRESSER, Appellant, v. Brenda Wilsey DRESSER, Appellee.

Page 1152

350 So.2d 1152

William George DRESSER, Appellant, v. Brenda Wilsey DRESSER, Appellee.

No. FF-212.

District Court of Appeal of Florida, First District.

Oct. 26, 1977.

Harold B. Haimowitz, Jacksonville, for appellant.

Frank M. Scruby of Scruby, Yonge & Cobb, P.A., Orange Park, for appellee.

SMITH, Judge.

We have reviewed the merits of this appeal on money issues in a marriage dissolution proceeding and find no error. The judgment therefore will be affirmed.

As is customary in these cases, the appellee wife timely filed, with her brief on the merits, a motion for allowance of fee money on account of the past and prospective appellate services of her attorney. Fla.App.R. 3.16 e. The motion was in simple terms, requesting the desired relief but making no recitation of supporting grounds. In this the motion is typical of motions which this court has frequently granted when deciding appeals favorably to the appellee wife. With some exceptions not reflected by published opinions, this court until recently has favorably considered similar motions by the prevailing appellee when it appeared from the record that the trial court awarded fee money to the appellee in the judgment of dissolution. We also have awarded fee money to the prevailing appellant when, in the dissolution judgment, the trial court awarded fee money to that party. Our unstated rationale for that practice was as described in Ludemann v. Ludemann, 317 So.2d 860, 861 (Fla. 4th DCA 1975): that the determination of whether to award fee money for appellate services in dissolution litigation is a prerogative of the appellate court; that, as in the trial court, the controlling circumstances are "one party's need for, and the other party's ability to pay, reasonable attorney's fees"; and that we may assume, in the absence of a contrary showing, that the disparity in economic ability which supported the trial court award has continued through the appellate process. Almost invariably we have remanded cases to the trial court to set the amount of the award upon consideration of the appropriate factors in the attorney's services.

Our increasing concern with the reliability of assuming continued economic disparity between the parties during the appeal led a panel of this court to depart from our prevailing practice in Burns v. Snedaker, 348 So.2d 597 (Fla. 1st DCA 1977). Relying on prior decisions which were concerned with the adequacy of allegations and proof of the requisites for fee money awards in trial courts, the court stated:

"Although appellee has requested attorney's fees, his motion fails to allege his need or appellant's ability to pay. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977) . . . and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977) . . . . Therefore, although appellee prevails in the appeal there is no basis for our determination as to whether or not an attorney's fee may be properly allowed. . . . Accordingly, the motion for attorney's fees is denied." 348 So.2d at 598.

Adherence to the Burns opinion would, of course, require denial in this case of appellee's motion. However, we have reconsidered the implications of the Burns opinion. Although we are reluctant to assume that any disparity in the parties' financial abilities at the time of dissolution has continued until disposition of the appeal, we recognize it is impractical and inappropriate for an appellate court to entertain and resolve issues concerning the relative financial abilities of the parties at the time an appellate motion for allowance of fees is filed, or when a response may be seasonably filed, or when the case is submitted by argument or otherwise, or when the appellate decision is rendered. Short of taking testimony or conducting a trial by affidavits, we cannot determine the issues that adherence to Burns will generate.

We therefore recede...