Mullins v. Mullins
| Decision Date | 19 November 1976 |
| Docket Number | No. 76--1267,76--1267 |
| Citation | 342 So.2d 83 |
| Court | Florida District Court of Appeals |
| Parties | Charles Albert MULLINS, Appellant, v. Patricia J. MULLINS, Appellee. |
Harold M. Braxton, Miami, for appellant.
No appearance for appellee.
This is an interlocutory appeal from an order requiring the husband in a dissolution of marriage suit to pay the costs of preparing a transcript needed for the wife's appeal. The trial court, by its order which is the subject of this appeal, required the husband to deposit $1,300 with the court reporter or make other arrangements to secure the preparation of the transcript.
Fla.App. Rule 3.16(a) provides:
(emphasis supplied)
Also Fla.App. Rule 3.8, which spells out the power of the lower court after entry of any appeal, in paragraph (b) allows the lower court in its discretion, upon proper notice and hearing, to order the payment of separate maintenance, support or alimony pending appeal. However there is no provision in the Florida Appellate Rules for the lower court to tax the costs of an appeal prior to the filing of the mandate. The language of Fla.App. Rule 3.16(a) is quite clear: Appellate costs may be taxed in the lower court only after the filing of the appellate court's mandate. Robinson v. Crocker, 138 Fla. 727, 190 So. 5 (1939); Burns v. Burns, 153 Fla. 73, 13 So.2d 599 (1943); Belcher v. Belcher, 307 So.2d 918 (Fla.3d DCA 1975). The trial court's order requiring husband to secure the preparation of the transcript for the wife's appeal is reversed.
Husband raises a second point, contending that the trial court erred in denying his motion below to force his wife to pay half of the property taxes due on the real property owned by them as tenants in common. The record is inadequate to permit any conclusion on this point. We have before us only the assertions in husband's brief. We must affirm. Steinhauer v. Steinhauer, 336 So.2d 665 (Fla.4th DCA 1976); Hall v. Bass, 309 So.2d 250 (Fla.4th DCA 1975); Pierson v. Sharp, 283 So.2d 880 (Fla.4th DCA 1973).
REVERSED in part, AFFIRMED in part, and REMANDED.
Appellee-wife contends that she does not seek to tax the costs of this appeal prior to the filing of the mandate. Instead, she contends that she is only seeking to obtain from her former husband the money required for preparation of the record on appeal. In other words she wants suit money so she can prosecute her appeal.
As pointed out in our original opinion, the powers of the lower court after entry of an appeal are set out in Fla.App. Rule 3.8. Paragraph (b) of this Rule allows the lower court in its discretion, upon proper notice and hearing, to order the payment of separate maintenance, support or alimony pending appeal. Just as there is no provision for the lower court to tax costs of an appeal prior to the filing of the mandate, neither is there authorization for the trial court to order one spouse to pay suit money to the other pending appeal.
Whether the trial court's order requiring the husband to deposit $1,300.00 with the court reporter or to make other arrangements to secure the preparation of the transcript was a taxing of the costs of the appeal prior to filing of the mandate or was an award of suit money to the wife pending appeal--in either event it is not authorized under any provision of the Florida Appellate Rules. If the Rule ought to be otherwise it is within the province of the Supreme Court to amend the Rule.
Petition for rehearing DENIED.
We previously published an opinion in this case reversing an order of the trial court directing the appellant husband to advance the sum of $1300 for the court reporter so that the wife could obtain a transcript of the trial testimony in support of her appeal from the final judgment of dissolution. We held that the order amounted to the taxation of costs against the husband prior to the filing of a mandate by the appellate court.
The matter is now before us on the wife's petition for rehearing (she did not favor us with an appellee's brief).
In my opinion, the court...
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Miller v. Miller
...this court is without the power to enter orders for temporary suit money or attorneys fees, relying principally on Mullins v. Mullins, 342 So.2d 83 (Fla. 4th DCA 1976). However, because Mullins v. Mullins dealt with a trial court's attempted award of interim costs and because section 61.16 ......
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Boyer v. Boyer
...to the acquisition of jurisdiction of appellate fees or costs (prior to mandate) that it never had to begin with. See Mullins v. Mullins, 342 So.2d 83 (Fla. 4th DCA 1976). Although section 61.16 has been said to be the basis for an appellate court to award attorney fees on appeal, it does n......
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Gieseke v. Gieseke, 85-1938
...9.400(b). Thornton v. Thornton, 433 So.2d 682 (Fla. 5th DCA 1983); Winner v. Winner, 376 So.2d 924 (Fla. 3d DCA 1979); Mullins v. Mullins, 342 So.2d 83 (Fla. 4th DCA 1976); Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975). "The question of whether to award attorney's fees for service......
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