Taylor v. Taylor, No. 98-1276

• Decision Date: 12 May 1999
• Docket Number: No. 98-1276, No. 98-2061.
• Citation: 734 So.2d 473
• Parties: Wendy B. TAYLOR, Appellant, v. James W. TAYLOR, Appellee.
• Court: Florida District Court of Appeals

734 So.2d 473

Wendy B. TAYLOR, Appellant, v. James W. TAYLOR, Appellee.

Nos. 98-1276, 98-2061.

District Court of Appeal of Florida, Fourth District.

May 12, 1999.

Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Ann H. Perry of Hanson, Perry & Jensen, P.A., West Palm Beach, for appellant.

Lawrence Duffy of Nicoletti, Duffy, Poncy & Edwards, P.A., West Palm Beach, for appellee.

KLEIN, J.

Appellant argues that the trial court abused its discretion in denying her petition for an upward modification of child support and in denying her attorney's fees, in light of her former husband's ample ability to pay. We affirm.

The parties have two children, ages fourteen and nine. The mother is employed as a secretary earning $25,000 a year. Her only asset of any significance, besides her home and car, is a $30,000 bank account. The father does not have to work. His most recent gross annual income was $247,000, which consisted of interest from $1,100,000 in stocks and bonds and distributions from trusts.

The mother filed this petition for increased child support on the ground that since the last determination of child support, in 1991, the husband's income had increased by about fifty percent, and so had the value of his stocks and bonds. The trial court concluded that the mother had failed to demonstrate a sufficient change in the needs of the children to warrant modification. In the order the court noted that the father has been paying $3,000 a month child support, plus private school tuition, and medical expenses, which is substantially more than the guideline child support. The court further observed:

The evidence of increased need was scant. A wish for a $300.00 baseball bat or a tuxedo for a fourteen year old as argued by Petitioner does not establish increased need on the part of the children.

The mother argues, based on Miller v. Schou, 616 So.2d 436 (Fla.1993), that children of wealthy people are entitled to share their standard of living. In the present case, however, the court found that these children, even considering the substantial wealth of their father, lacked nothing. The evidence showed that the father was willing to pay for camp, extracurricular activities, sports equipment, etc., in addition to his fixed obligations. Moreover, the evidence did not show that the parties lived lavishly when they were married or that the father lives lavishly now. Rather it is the philosophy of the father, as well as his family, that the trusts be maintained in order to ultimately benefit his issue, including these children, rather than invading the corpus in order to live more extravagantly now. We therefore affirm because the mother has failed to demonstrate that the trial court abused its discretion. Creel v. Creel, 568 So.2d 942, 943 (Fla. 3d DCA 1990).

As to the denial of attorney's fees, we note that the trial court did award temporary attorney's fees of $6,500 and temporary costs of $5,000. After the trial, at the hearing requesting about $14,000 in additional fees and costs, the court observed that "it appears that there was ... very little, if any, change in circumstances that would warrant a modification. And the Court is very concerned that this is just the type of vexatious and frivolous litigation that Rosen [v. Rosen, 696 So.2d 697 (Fla.1997)] was meant to address." In its order denying additional fees and costs, the court characterized the case as "one which probably should not have been brought."

Although our supreme court in Rosen held that the financial resources of the parties is the primary factor to be considered when awarding fees, it also held that trial courts have "broad" discretion to consider a number of other factors, including the merits of the litigation. We cannot say, considering the evidence and the trial court's conclusions as to the merits of the petition for modification, that the court erred in not requiring the father to pay all of the mother's attorney's fees and costs.

Although the trial court concluded that the petition for modification was...