Wiley v. Wiley, 85-38
| Decision Date | 16 January 1986 |
| Docket Number | No. 85-38,85-38 |
| Citation | 485 So.2d 2,11 Fla. L. Weekly 216 |
| Parties | 11 Fla. L. Weekly 216, 11 Fla. L. Weekly 699 Michael Glenn WILEY, Appellant, v. Sharlene Marie WILEY, Appellee. |
| Court | Florida District Court of Appeals |
Sylvan A. Wells and B. Paul Katz, Daytona Beach, for appellant.
Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
Michael Wiley appeals from a final judgment dissolving his marriage to Sharlene First, the husband contends that it was error to award fees because the wife's attorney did not personally testify as to his services. At trial, attorney Garrett Briggs testified that he had reviewed the wife's case file and concluded that $3,000 to $3,500 was a reasonable fee considering the legal issues involved. Briggs also testified that Jerry Wells, the attorney for the wife, told him that he (Wells) had spent between thirty-five and sixty hours on the case. Wells, however, did not testify nor did he submit an affidavit regarding his legal services in this case. Although the husband could challenge Briggs' assessment of the case, he was denied the opportunity to challenge the reasonableness of the number of hours allegedly spent by Wells. Since there was no competent evidence detailing services performed by Wells, the award of attorney's fees is reversed and the cause remanded for a hearing on this issue. Jacobsen v. Jacobsen, 414 So.2d 34 (Fla. 5th DCA 1982); Cohen v. Cohen, 400 So.2d 463 (Fla. 4th DCA 1981).
Wiley. The husband raises several points on appeal, two of which have merit.
Secondly the husband contends that the trial court erred in reserving jurisdiction to appoint a commissioner for the sale of the parties' property in the event they are unable to agree to an appropriate disposition of that property.
The final judgment provided that the husband and wife were entitled to a one-half interest in the marital residence, commercial real estate and personal property. Thus, either party, as a tenant in common, has a right to partition. That right, however, exists by virtue of law (chapter 64, Florida Statutes) and not because of the final judgment. Smith v. Smith, 464 So.2d 1287 (Fla. 5th DCA 1985). Neither party specifically asked for partition; therefore, we reverse the retention of jurisdiction by the trial court to appoint a commissioner.
As to the other points raised by the husband, we find no error and affirm.
AFFIRMED in part; REVERSED in part and...
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