Kittel v. Kittel
| Decision Date | 19 December 1967 |
| Docket Number | No. 36332,36332 |
| Citation | 210 So.2d 1 |
| Parties | A. C. KITTEL, Jr., Petitioner, v. Anne B. KITTEL, Respondent. |
| Court | Florida Supreme Court |
John W. Prunty, Miami, for petitioner.
George J. Baya, Miami, for respondent.
The petition for writ of certiorari reflected probable jurisdiction in this Court. After argument and upon further consideration, we have determined the writ was improvidently issued. The writ must be and is discharged and the petition is dismissed.
Motion for attorneys' fees denied.
It is so ordered.
ON PETITION FOR REHEARING.
Mrs. Anne B. Kittel, hereafter referred to as the wife, obtained in Dade County a decree of separate maintenance from her husband, A. C. Kittel, Jr., hereafter referred to as the husband. On appeal this decree was affirmed without opinion by the District Court of Appeal, Third District. 1 Thereafter the husband obtained a Mexican divorce which dissolved the marriage status between the husband and wife but preserved without modification the decree of separate maintenance. 2
After the institution of the Mexican divorce proceedings, the wife commenced action in the Circuit Court of Dade County to enjoin the husband from proceeding further therein. The complaint was dismissed with leave to amend. The amended complaint was for a declaratory decree contending the Mexican divorce was void. Attached to and made a part of the complaint was a certified translated copy of such Mexican decree. In such amended complaint the wife sought attorney's fees for the services of her attorney. From an order denying a motion to dismiss the amended complaint for failure to state a cause of action but granting a motion to strike the prayer for attorney's fees, both husband and wife appealed. The District Court upheld the complaint as a direct attack on the alleged void decree but sustained the action of the trial court in dismissing that portion of the complaint seeking attorney's fees. 3
On remand the trial court entered a final decree declaring the Mexican divorce void and retaining jurisdiction 'on attorney's fees for the services of the wife's attorneys in this matter, if any.' The husband then appealed from such final decree which resulted in the opinion of the District Court which is now the subject of these conflict certiorari proceedings. 4 In this opinion the District Court upheld the action of the trial court and by separate order awarded the wife's solicitors $500 for services in the District Court. 5 We conclude that the decision on the latter point requires the exercise of this Court's jurisdiction in certiorari, and that the petition for rehearing addressed to our order discharging the writ heretofore issued in this cause should be granted.
The award of attorney's fees for services of the wife's attorney in these proceedings finds no support in the statutory law of this State. Such award conflicts with the decisions of this Court in Simpson v. Simpson, Fla.1953, 63 So.2d 764, text 765; Haynes v. Haynes, Fla.1954, 71 So.2d 491; Mouyois v. Mouyois, Fla.App.1957, 97 So.2d 718, and other cases. The statute under which attorney's fees are claimed 6 specifically limits attorney's fees for the wife to those 'legal proceedings * * * brought for the purpose of enforcing a decree or order of the court providing for the payment of alimony or support for children. * * *' This is not such a proceeding. The keystone of the complaint is the Mexican divorce which on its face especially preserves all of the wife's rights under the maintenance decree. It is an elemental principle of law in this State that attorney's fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property. 7 In numerous cases this Court has construed the subject statute as authorizing attorney's fees for services only in proceedings of the kind therein defined. The statement in the District Court's opinion in Kittel v. Kittel, 164 So.2d 835, that 'there are circumstances which permit a wife to recover attorney's fees' is not authority for the award here. Simpson v. Simpson, cited as authority for the quoted holding, holds merely that a wife's defense of an action by the husband to reduce the amount of an award of alimony is within the statute because such statute should 'be given a broad and liberal interpretation so that the wife may be provided with suit money to defend against an attack upon a former decree made by the husband, whether such attack be for the purpose of eliminating entirely or merely reducing the amounts therein awarded for alimony and child support, since her defensive litigation is for the sole purpose of Enforcing a compliance with the decree as originally entered.' Simpson v. Simpson, supra. This is the outer limit to which this Court has extended the application of this statute.
Moreover, the holding of the District Court in this case in the decision at 164 So.2d 835, heretofore referred to, holding that attorney's fees were not recoverable, is clearly the law of the case. 8 Under this holding the trial court would have no power to make such an award. It is most difficult to understand, under the circumstances shown by the plain disclosures of this record, on what basis the District Court could have made such an award. It is particularly perplexing in the face of its prior undisturbed adjudication that no such fees were allowable. 9
It may well be that, under the circumstances, the Legislature should provide some means for requiring the husband to pay for the services of his wife's attorney. This is, however, a legislative, not a judicial, prerogative. While the amount of the fee here is not great, we feel compelled to state these views at length because of our firm conviction that to approve the action of the District Court here would not only create unaccountable confusion in our jurisprudence in this field but would completely emasculate an unbroken...
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