Kelly v. Kelly, 5D05-177.

• Decision Date: 03 March 2006
• Docket Number: No. 5D05-177.,5D05-177.
• Citation: 925 So.2d 364
• Parties: Laurie Jeanne KELLY, Appellant, v. Gregory W. KELLY, Appellee.
• Court: Florida District Court of Appeals

925 So.2d 364

Laurie Jeanne KELLY, Appellant, v. Gregory W. KELLY, Appellee.

No. 5D05-177.

District Court of Appeal of Florida, Fifth District.

March 3, 2006.

Rehearing Denied April 3, 2006.

COPYRIGHT MATERIAL OMITTED

Nancy N. Nowlis and Barry L. Zisser of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A, Jacksonville, for Appellant.

Hal Castillo, Jacksonville, for Appellee.

SHARP, W., J.

Laurie Jeanne Kelly, the former wife, appeals from an order rendered after a hearing to award attorney fees, following the completion of her dissolution proceeding. The order denied, in large part, her request for an attorney fee award, and granted her $3,901.50 in fees to compensate for the delays caused by the former husband, Gregory W. Kelly, during the litigation. She argues that the award fails to adequately compensate her for the costs and time incurred by her attorney, and that she should have been awarded all of her costs and fees based on the great disparity in the parties' financial circumstances following the distribution of marital assets. The final decree denied her any alimony, and denied her any share in the increase in value of Gregory's business interests during the parties' marriage because of a prenuptial agreement.¹ We reverse and remand to the trial court for determination of an appropriate award of fees and costs.

The parties were married for almost sixteen years at the time Laurie filed a petition for dissolution in 2000. They separated in 1999 after Gregory discovered she had begun an affair with another man three years earlier. At the time of the dissolution, Gregory was 73 years old and Laurie was 46. They had two minor children.

Laurie had been a stock broker when the parties married, but during the marriage, she was a full-time housewife and mother. She testified she had not held a full-time employment position for twenty years. The court did not impute any income to her based on possible future employment. The parties lived a luxurious life style. Their marital home was on the ocean in Ponte Vedra Beach, and was sold during the dissolution proceeding for $4.6 million.

Gregory left the marriage with a net worth of $12,654,731.00. His net monthly income was $86,032.83, and he was still employed. Laurie received part of the proceeds from the sale of the marital home — $1.8 million. She was required to pay $25,000.00 on a credit card that had originally been allocated to Gregory; she was ordered to pay child support of $868.00 per month; and she received no award of alimony. There was some dispute about additional marital assets she would receive over time — in two or three years — $858,147.92 or $963,728.10, but the former husband conceded that there had been a mathematical calculation error and that the sum was the latter figure.

The trial court found that Gregory's financial position relative to Laurie's, post the dissolution, was "superior" and that the parties had enjoyed a "very comfortable lifestyle." However, it determined that Laurie did not have any "need" to have her attorney fees paid by Gregory because she was "self sufficient" financially, since she should have $2 million in assets to invest. The court found that she could earn 6% per year, which would produce $120,000 per year, or a gross of $10,000.00 per month, the amount that Laurie had lived on during these lengthy dissolution proceedings. Laurie projected her living expenses to maintain her marital lifestyle were $18,000.00 per month. The court found her expenses were overstated. $10,000.00 per month would sustain her in a proper lifestyle. Unfortunately, the record does not support the trial court's calculation of her income.

At the hearing on attorney fees, an attorney expert testified that this had been an extremely difficult dissolution case to handle, and that it had involved almost every possible difficult family law issue from custody to valuation of businesses. He noted that the litigation had lasted three years, issues had been bifurcated, a duplicate lawsuit had been filed by Gregory in another county, and that there had been acrimony between counsel and the parties. He testified that Laurie's attorney had charged a reasonable hourly rate and expended a reasonable amount of time on the case. Gregory had paid $35,000.00 in temporary fees for Laurie, and her attorney was reasonable in seeking payment of a balance of $88,000.00. The attorney fee affidavit justified a total award of $123.000.00 for fees and $12,691.23 in costs.

Laurie testified that she would have to use some of the $1.8 million she had received in equitable distribution to purchase a home for herself, and to have an appropriate place for housing the children when they visited her. Thus, the projection of $10,000.00 in gross income per month to her was erroneous. If she purchased a home for $500,000.00, keeping in mind the lifestyle she was accustomed to, her investment principal would be $1.3 million. If it earned 6%, her gross annual income would be $78,000.00; and her gross monthly income $6,500.00, minus child support of $868.00 per month = $5,642.00. This is far below the level that the trial court had projected would be adequate for her needs, based upon her $10,000 per month temporary payment.

Also at the hearing, the attorney for Laurie testified that there had been numerous failures on Gregory's part, to timely pay moneys due Laurie, and that Gregory had repeatedly failed to timely make full disclosures in response to discovery. Laurie's counsel testified that, in turn, extra time and effort were required on his part to obtain the information needed to proceed with the case. He also pointed to the file which indicated numerous requests by him for continuances due to incomplete discovery disclosures prior to hearings, which, in turn, required duplicate efforts to prepare for hearings and trials.

The trial court indicated it would make an award based on Gregory's delaying tactics and failure to timely comply with discovery. In its final order the court stated "The former husband in this case engaged in some attempts to delay, hinder, and obstruct the progress of the trial through his failure to comply with discovery requests and orders of this court." Based on the attorney affidavit showing time records, the court then determined this amount was 15 hours, at $250.00 per hour and 2.1 hours at $75.00 = $3,901.50.

I. Award of attorney fees pursuant to Section 61.16

Section 61.16 provides in part:

(1) the court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. . . .

The supreme court, in Rosen v. Rosen, 696 So.2d 697 (Fla.1997), explained that the language in section 61.16 requires the trial court to consider other relevant factors besides the financial resources of the parties, such as: the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; and whether the litigation is brought or maintained primarily to harass.

Although the statute does not expressly mention need on the part of one party and the ability to pay attorney fees on the part of the other, the courts have included those factors in making awards of fees in dissolution cases. Some have emphasized that "need" is the primary consideration in cases where it is undisputable that one party has the ability to pay. See Nelson v. Nelson, 795 So.2d 977 (Fla. 5th DCA 2001); Morris v. Morris, 743 So.2d 81 (Fla. 5th DCA 1999); Satter v. Satter, 709 So.2d 617 (Fla. 4th DCA 1998); Mauldin v. Mauldin, 493 So.2d 1103 (Fla. 5th DCA 1986).

However, one party need not be completely without ability to pay attorney fees in order to be awarded fees. See Rowl v. Rowl, 864 So.2d 1236 (Fla. 5th DCA 2004); Cullen v. Cullen, 884 So.2d 304 (Fla. 2d DCA 2004). The purpose of the attorneys fees statute is to ensure that both parties will have a similar ability to obtain competent legal counsel. Cullen. The cases where attorney fees have been denied because one spouse has no need are ones in which he or she has received assets via equitable distribution or alimony, or has another income source with which to pay the attorney fees without diminishing the party's standard of living or depleting that party's assets. In a similar context, where the parties were each awarded in excess of $1,459,000 as equitable distribution, had lived a lavish lifestyle, the former husband had a large income and the wife received $3,000 a month in alimony, the court found there was no abuse of discretion in requiring the former husband to pay 75% of the wife's attorney's fees. Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000).

A spouse of a relatively long-term marriage is entitled to maintain the style or standard of living enjoyed during marriage if possible. See Cash v. Cash, 691 So.2d 6 (Fla. 5th DCA 1997); Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997). And a spouse is not required to deplete her capital assets to maintain the standard of living she enjoyed during the marriage. See Kaufman v. Kaufman, 541 So.2d 743 (Fla. 3d DCA 1989); Blakistone v. Blakistone, 462 So.2d 883 (Fla. 2d DCA 1985); In re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978). See generally, Cullen; Nisbeth v. Nisbeth, 568 So.2d 461 (Fla. 3d DCA 1990). As the third district noted in De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983), requiring a wife to deplete her capital assets is wrong, both as a matter of law and economics.

The relevant context in which to make a judgment regarding attorneys fees is after the dissolution proceeding has concluded, based upon the...