Wilkinson v. Wilkinson
| Decision Date | 12 June 1998 |
| Docket Number | No. 97-2453,97-2453 |
| Citation | 714 So.2d 524 |
| Parties | 23 Fla. L. Weekly D1449 John R. WILKINSON, Appellant, v. Shirley M. WILKINSON, Appellee. |
| Court | Florida District Court of Appeals |
Jack A. Nants, Orlando, and Kelvin L. Averbuch, Lake Mary, for Appellant.
David A. Sims of Doss & Sims, P.A., Altamonte Springs, for Appellee.
John Wilkinson (husband) appeals the final judgment dissolving his marriage to Shirley Wilkinson (wife). We affirm the dissolution of marriage, but reverse the awards of alimony, attorney's fees, and equitable distribution.
In the final dissolution judgment, the trial court determined that the husband had the obligation to pay the wife permanent periodic alimony after imputing his income to be $4,000 per month. However, the trial court erred because it did not identify with particularity the source of the husband's imputed income. See Vick v. Vick, 675 So.2d 714, 717 (Fla. 5th DCA 1996). As a result of this error, we must reverse the award of permanent periodic alimony and remand for reconsideration.
The trial court's failure to identify the source of the husband's imputed income also invalidates the court's order directing the husband to pay $6,000 of the wife's attorney's fees. Pursuant to section 61.16(1), Florida Statutes (1995), "[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees...." In Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997), our supreme court stated that "the financial resources of the parties are the primary factor to be considered ...," but other factors may also be considered. Id. These other factors include "the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation." Id.
Here, the trial court cited three reasons for the fee award: 1) the husband had the greater ability to pay; 2) the wife had the need to receive such an award; and 3) the husband asserted unreasonable positions in the case. However, we have reversed the finding as to the husband's imputed income as well as the wife's alimony award. As a result, it is possible that, upon reevaluation of the husband's financial resources and obligations, the husband's ability to pay and the wife's need for contribution towards her attorney's fees may change. Accordingly, we vacate the portion of the final dissolution judgment which awards the wife $6,000 in attorney's fees because, on remand, the findings as to the parties' financial resources may be altered. See Schiller v. Schiller, 625 So.2d 856, 862 (Fla. 5th DCA 1993).
In so ruling, we also note that the trial court concluded that the wife was entitled to receive an award of attorney's fees because the husband asserted "unreasonable positions" regarding the equitable distribution of the parties' marital assets. However, the record does not indicate that the husband intended to "frustrate or stall" the dissolution proceedings. See Ro...
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...for purposes of awarding attorney's fees. See Smith; Arouza v. Arouza, 670 So.2d 69 (Fla. 3d DCA 1996); see also Wilkinson v. Wilkinson, 714 So.2d 524 (Fla. 5th DCA 1998). In Smith, the court The statute addressing attorney's fees, suit money, and costs contemplates the trial court's consid......
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