Mettler v. Mettler

• Court: Florida District Court of Appeals
• Writing for the Court: POLEN
• Citation: Mettler v. Mettler, 569 So.2d 496 (Fla. App. 1990)
• Decision Date: 10 October 1990
• Docket Number: No. 88-2185,88-2185
• Parties: 15 Fla. L. Weekly D2499 Elizabeth J. METTLER, Appellant, v. Peter W. METTLER, Appellee.

Page 496

569 So.2d 496

15 Fla. L. Weekly D2499

Elizabeth J. METTLER, Appellant, v. Peter W. METTLER, Appellee.

No. 88-2185.

District Court of Appeal of Florida Fourth District.

Oct. 10, 1990.

Rehearing Denied Nov. 26, 1990.

Arthur England, Paul R. Lipton, and Linda Ann Wells of Fine Jacobson Schwartz Nash Block & England, Miami, for appellant.

Mark T. Luttier and Odette Marie Bendeck of Gunster, Yoakley, Criser & Stewart, P.A., West Palm Beach, for appellee.

POLEN, Judge.

Elizabeth Mettler seeks review of the trial court's order granting trial and appellate attorney's fees to the former husband and to counsel for the minor children for representation in post-dissolution modification and related appellate proceedings. Appellant alleges error in four areas, one of which we find requires reversal.

During the three-year period following the parties' final judgment of dissolution, both parties filed numerous motions relating to custody of the children and visitation rights as well as the awarding of attorney's fees. The trial court granted former husband's petition for modification, transferring immediate sole parental responsibility for the children to him and granting appellant restricted visitation privileges, and denied appellant's claim for attorney's fees. The trial court reserved jurisdiction on former husband's claim for fees and for the purpose of reapportioning fees already paid the court appointed attorney ad litem. Appellant sought review of the modification order.

In Mettler v. Mettler, 519 So.2d 998 (Fla. 4th DCA 1988), this court affirmed the judgment of modification and granted the attorney ad litem's motion for appellate attorney's fees in accordance with the final judgment and the former husband's motion for appellate attorney fees conditioned upon a determination of entitlement pursuant to the final judgment. The final judgment made specific findings of fact that the file reflected a "pattern of extensive, expensive and needless litigation," that appellant "instigates litigation at considerable expense and aggravation over matters that could easily be resolved if she were reasonable" and that her family's resources had enabled her to pursue "this needless, futile and fruitless litigation."

Former husband filed a motion requesting a hearing on the issue of attorney's fees and costs incurred in trial representation. Former husband subsequently requested an award of appellate fees and an apportionment of the fees already paid to the attorney ad litem for representation at trial. The attorneys ad litem subsequently filed motions for payment of post-trial and appellate attorneys' fees and costs.

Following a two-day evidentiary hearing, the trial court ordered appellant to reimburse former husband $31,993.78 for fees and costs incurred in the modification action. Appellant was also required to pay $10,000 to former husband's attorney for his representation on appeal and $20,535 to appellate counsel for representing the children. The $16,682 awarded trial counsel for the children for post-judgment, non-appellate fees and costs was apportioned twenty-five percent to former husband, and seventy-five percent to appellant.

We find ample support for the trial court's findings as to the former wife's conduct. Her conduct unnecessarily engendered recalcitrant or vexatious litigation and served to frustrate the public policy of this state to promote settlement of litigation and where possible to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

Appellant argues the trial court erred in taxing costs against her regardless of either her conduct or her family's ample financial resources, when she herself had no ability to pay any portion of the former husband's fees and costs and such an award must be based upon consideration of the financial resources of both parties subject to their individual control. See § 61.16, Fla.Stat. (1...