Patterson v. Patterson
| Decision Date | 27 May 1981 |
| Docket Number | No. 80-893,80-893 |
| Citation | 399 So.2d 73 |
| Parties | John H. PATTERSON, Appellant, v. Louise N. PATTERSON, Appellee. |
| Court | Florida District Court of Appeals |
William N. DeCarlis of Bates & DeCarlis, Gainesville, for appellant.
Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P. A., Ocala, for appellee.
The order appealed from denied the appellant's petition to modify the final judgment of dissolution, granted the appellee's motion to hold appellant in contempt for wilful refusal to comply with the terms of the final judgment, and awarded the wife an attorney fee of $2600 plus costs of this proceeding. The former husband appeals and we affirm.
Appellant fails to demonstrate an abuse of the court's discretion in refusing to modify the final judgment or in adjudging him in contempt for wilful refusal to comply with its terms, and no useful purpose would be served by discussion of these issues. Appellant's contention that the wife did not show entitlement to an award of attorney fees deserves further consideration.
Statutory authority for the award of attorney fees in dissolution proceedings, including enforcement and modification, is found in section 61.16, Florida Statutes (1979). 1 The general rule is that the purpose in awarding attorney fees is to ensure that both parties will have the same opportunity to secure counsel. Deatherage v. Deatherage, 395 So.2d 1169 (Fla. 5th DCA, 1981); Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973). Prior to Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), it had been held that to be entitled to an attorney's fee, the requesting spouse must show, among other things, that he or she was unable to pay it. See, e. g., Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). 2 This strict requirement was modified by the Supreme Court in Canakaris, where it was held:
It is not necessary that one spouse be completely unable to pay attorney's fees in order for the trial court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney's fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.
We hold that where, as here, it is necessary for a spouse to seek enforcement of the final judgment because of wilful refusal of the other spouse to comply with its terms, the trial court may take into account the disregard by that other spouse of the court's order in considering a motion to assess attorney fees. Spencer v. Spencer, 305 So.2d 256 (Fla.3d DCA 1974), cert. denied, 351 So.2d 470 (Fla.1975). We agree with that portion of the specially concurring opinion of Judge McCord in Patterson where, in discussing the effect of section 61.16, Florida Statutes (1979), in an enforcement proceeding he said:
This statute vests authority in the trial court to order a party to pay a reasonable amount for attorney's fees for the other party after considering the financial resources of...
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...fees in a dissolution proceeding, is to insure that both parties will have the same opportunity to secure counsel. Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981). Where one spouse has a superior financial ability to secure counsel, it is not that the other spouse be completely una......
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