Thornton v. Thornton

• Decision Date: 30 June 1983
• Docket Number: No. 82-812,82-812
• Citation: 433 So.2d 682
• Parties: Avie Lee THORNTON, Appellant, v. Lacy THORNTON, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 682

433 So.2d 682

Avie Lee THORNTON, Appellant, v. Lacy THORNTON, Jr., Appellee.

No. 82-812.

District Court of Appeal of Florida Fifth District.

June 30, 1983.

Carl Jackson Moore, Palatka, for appellant.

Tito S. Smith of Hedstrom & Smith, Palatka, for appellee.

OPINION AND ORDER ON MOTION FOR ATTORNEY FEES

COBB, Judge.

The appellant wife, Avie Thornton, asserts that the trial court erred in awarding her rehabilitative, instead of permanent, alimony. We affirm, based on the facts of this case and the latitude of the trial judge's discretion in this area. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla.1982).

At the trial level the wife was awarded attorney's fees pursuant to section 61.16, Florida Statutes (1981). She now has filed a timely motion, pursuant to the provisions of Rule 9.400, Florida Rules of Appellate Procedure, seeking attorney's fees on appeal. Provision (b) of that rule reads:

(b) Attorney's Fees.--A motion for attorney's fees may be served not later than the time for service of the reply brief and shall state the grounds upon which recovery is sought. The assessment of attorney's fees may be remanded to the lower tribunal. If attorney's fees are assessed by the court, the lower tribunal may enforce payment.

The appellant's motion alleges financial inability to pay her appellate attorney's fees and the ability of the appellee to do so. Attached to the motion is a supportive financial affidavit. No response to this motion was filed by appellee as is permitted by Rule 9.300 of the appellate rules.

The problems involved in the award or denial of attorney's fees on appeal have been addressed in several cases. The authority of the appellate court to award attorney's fees is based on the interpretation of section 61.16 as authorizing fee awards both at trial and on appeal. Bryan v Bryan, 342 So.2d 858 (Fla. 2d DCA 1977); Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976); Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974); Lovett v. Lovett, 194 So.2d 916 (Fla. 2d DCA 1967). The difficulty is not in ascertaining the authority for such fees, but in formulating consistent rules to govern the exercise of that authority. For example, some courts, in considering attorney's fees for dissolution appeals, have utilized the "prevailing party" theory stemming from section 59.46(1), Florida Statutes (1981). See, e.g., Baucom v. Baucom, 397 So.2d 345 (Fla. 3d DCA 1981); Heller v. Heller, 151 So.2d 35 (Fla. 2d DCA 1963). Such fees, however, both at the trial and appellate levels, traditionally have been based on the concept of comparative abilities to secure counsel rather than on a party's victory. See Canakaris, 382 So.2d at 1205; Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976). This misconceived intermingling of concepts has resulted in a lack of uniformity among various appellate courts in the granting or denial of attorney's fees on appeal.

The problems inherent in dealing with the reliability of assuming continued economic disparity between the parties during appeal are discussed in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). In that case, the First District receded from its prior practice, as set forth in Burns v. Snedaker, 348 So.2d 597 (Fla. 1st DCA 1977), and opted for a case-by-case approach and utilization of a provisional order with remand to the trial court for a determination of need and ability.

We agree with the concept set forth in Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975), wherein the Fourth District analyzed the problem as follows:

The question of whether to award attorney's fees for services on appeal in domestic litigation is a prerogative of the appellate court. Generally, this is determined primarily on a consideration of the financial resources of the parties as reflecting one party's need for, and the other party's ability to pay, reasonable attorney's fees. Where such is not readily apparent from the record then the appellate court usually ascertains whether the trial court awarded attorney's fees to either party for services in the trial court, as there would be implicit in such award a factual determination by the trial court of one party's need for, and the other party's ability to pay, a reasonable attorney's fee. If there was an award of attorney's fees in the trial court, and such award is not contested on appeal (or if contested, is affirmed), the appellate court then has a sound basis to conclude, in the absence of extenuating circumstances, that an allowance of attorney's fees for services rendered in the appellate court would also be justified. Of course, the matter of allowance of attorney's fees in domestic litigation is always a matter of sound judicial discretion. If an allowance might otherwise appear proper, but extenuating circumstances are shown, such as a substantial change in the financial resources of the parties occurring subsequent to the trial, or that the one seeking the allowance of an attorney's fee on appeal has taken an appeal which is wholly frivolous and vexatious, the court well may deny any allowance of fee. Any extenuating circumstance should be brought to the attention of the appellate court promptly in response to the motion seeking the allowance of an attorney's fee.

If the appellate court determines, in the exercise of its sound discretion, to allow an attorney's fee for services in the appellate court, it may assess the amount of such fee, or it may, as we did in this case, elect to utilize the provisions of Rule 3.16(e) F.A.R. to authorize the trial court to assess the amount of such attorney's fee upon remand. The latter alternative is usually the...