Meloan v. Coverdale, 87-1815

• Decision Date: 10 May 1988
• Docket Number: No. 87-1815,87-1815
• Parties: 13 Fla. L. Weekly 1130 Henry Lewis MELOAN, Appellant, v. Carol K. COVERDALE, f/k/a Carol Meloan, Appellee.
• Court: Florida District Court of Appeals

Page 935

525 So.2d 935

13 Fla. L. Weekly 1130

Henry Lewis MELOAN, Appellant, v. Carol K. COVERDALE, f/k/a Carol Meloan, Appellee.

No. 87-1815.

District Court of Appeal of Florida,

Third District.

May 10, 1988.

Rehearing Denied June 14, 1988.

Beth Tyler Vogelsang, Miami, for appellant.

Highsmith, Strauss & Glatzer, P.A., and Philip Glatzer, Miami, for appellee.

Before BARKDULL, NESBITT and JORGENSON, JJ.

JORGENSON, Judge.

Henry Meloan assigns as error the trial court's denial of his motion for attorney's fees, guardian ad litem fees, court-appointed psychologist fees, and suit monies in an action to enforce visitation rights. He also assigns as error the trial court's order granting the petition of his former wife, Carol K. Coverdale, for attorney's fees and costs in the enforcement action and order requiring Henry to pay private school tuition. For the reasons which follow, we affirm in part and reverse in part.

The marriage between Carol and Henry was dissolved in 1984. Under the terms of the property settlement agreement, Carol was awarded periodic alimony, child support, and residential custody of the two minor children, Michael and Katherine. The agreement obligated Henry to provide health insurance for the children and to pay any portion of psychological counseling services not fully covered by insurance as long as the services were rendered by participating practitioners. The agreement further obligated Henry to pay the children's education expenses, subject to certain conditions.

Henry and the children enjoyed regular and frequent visitation following the dissolution until Henry married his present wife. Carol and the children perceived his remarriage as a disruptive event in their lives, and visitation effectively ceased. Henry sought assistance in reestablishing visitation through the Family Mediation Unit but was unsuccessful in bringing Carol into mediation. In September, 1985, he filed the first of several petitions for enforcement of visitation rights. We decline to detail the flurry of litigation that ensued over the next eighteen months, except to note that the services of a guardian ad litem and a court-appointed psychologist as well as repeated court orders were required to overcome Carol's intransigence as the custodial parent in thwarting Henry's visitation. Approximately fourteen months into the visitation litigation, Carol counterpetitioned to modify child support. Shortly before the final hearing, she moved to require Henry to pay private school tuition for Michael. At the final hearing, the trial court: (a) denied Henry's motion to assess against Carol any portion of the $22,000 he had incurred in enforcing the visitation provisions of the agreement; (b) granted Carol's motion requiring Henry to pay all of her attorney's fees incurred in the litigation of all claims; (c) increased the amount of child support; and (d) granted Carol's motion to compel Henry to pay Michael's private school tuition. Henry appeals all of the orders, except for the order modifying child support.

Section 61.16, Florida Statutes (1985), provides statutory authority to award attorney's fees in proceedings to enforce or to modify a dissolution judgment. Absent a showing of an abuse of discretion concerning the amount awarded, an appellate court will not substitute its judgment for that of the trial court. Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976). One of the underlying principles upon which fees are allowed in domestic cases is to equalize the otherwise disparate financial abilities of the parties to retain counsel. Levy v. Levy, 483 So.2d 455, 457 (Fla. 3d DCA) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980)), rev. denied, 492 So.2d 1333 (Fla.1986). Although a major factor in the allowance of attorney's fees is the financial condition of the parties, "the general rule, operating as it does within courts of equity, must be flexible enough to permit consideration of other relevant factors." Broudy v. Broudy, 423 So.2d 504, 507 (Fla. 3d DCA 1982). See also Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971) (right to counsel fees in a dissolution proceeding is not absolute right but is founded upon equitable principles).

The court held in Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981), that where a spouse must seek judicial enforcement of a final judgment because of the other spouse's willful refusal to comply with its terms, the trial court may consider the recalcitrant spouse's disregard of the court's order in assessing attorney's fees. Although Patterson involved an adjudication of contempt, such an adjudication is not a prerequisite to an assessment of attorney's fees against the noncomplying party. The contempt of a noncomplying party is only one of several factors a trial court must examine in exercising its discretion to award attorney's fees. Warnhoff v. Warnhoff, 493 So.2d 52 (Fla. 4th DCA 1986), rev. denied, 503 So.2d 328 (Fla.1987). Additional factors to be considered include whether the modification or enforcement action brought or defended by the party seeking fees was meritorious or was litigated in good faith and whether the actions of one party compelled the other party to resort to the courts for a remedy. See Dubreuil v. Dubreuil, 489 So.2d 97 (Fla. 3d DCA 1986) (former wife entitled to attorney's fees for services rendered in enforcing postfinal judgment property settlement agreement); Planes v. Planes, 477 So.2d 42 (Fla. 3d DCA 1985) (former wife entitled to award of attorney's fees incurred in enforcing agreement where former husband was in continuous violation of agreement); Creel v. Creel, 423 So.2d 419 (Fla. 3d DCA 1982) (court considered former husband's substantially non-meritorious petition for reduction in child support, as well as income, assets, and relative financial positions of parties, to find former wife entitled to attorney's fees); Broudy (former husband's refractory attitude toward payment of alimony and child support justified awarding former wife attorney's fees incurred in enforcing obligations); Barreiro v. Barreiro, 411 So.2d 974 (Fla. 3d DCA 1982) (where husband abrogated terms of property settlement agreement resulting in totally...