Yohanan v. deClaire

• Decision Date: 20 July 1983
• Docket Number: No. 83-886,83-886
• Citation: 435 So.2d 913
• Parties: Donna deClaire YOHANAN, Petitioner, v. George F. deCLAIRE, Respondent.
• Court: Florida District Court of Appeals

Page 913

435 So.2d 913

Donna deClaire YOHANAN, Petitioner, v. George F. deCLAIRE, Respondent.

No. 83-886.

District Court of Appeal of Florida Fourth District.

July 20, 1983.

Rehearing Denied Aug. 31, 1983.

James M. Tuthill of Christiansen, Jacknin & Tuthill, West Palm Beach, for petitioner.

Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for respondent.

HERSEY, Judge.

Petitioner seeks certiorari to block discovery procedures. Because we have frequently held that forced disclosure through discovery is irremediable in that once information has been disclosed it may never be "taken back," we have consistently granted certiorari to prevent disclosure, but never to compel disclosure. The former being involved here, we have jurisdiction.

In an earlier appearance of these parties before this court we separately ordered an award of attorney's fees to the successful former wife, providing that

[U]pon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Rule 9.400(c), Fla.R.App.P.

Yohanan v. deClaire, 421 So.2d 551 (Fla. 4th DCA 1982).

In preparing for the trial court's hearing to assess fees, respondent, former husband, attempted to discover the extent to which petitioner had the ability to participate in the payment of attorney's fees. This raises the question of whether, in the context of a marriage dissolution, an appellate court determination regarding an entitlement to attorney's fees,--the issues of one party's need and the other party's ability to pay--are to be taken into account and, in effect, retried for the purpose of setting the fee and allocating responsibility for its payment.

The appellate court obviously has the plenary power to set the amount of the fee and require a particular party to pay it. On the other hand, the appellate court could determine on the record before it that one party clearly has the ability to pay and that the other has just as clear a need, and remand for the sole purpose of an evidentiary hearing to determine the amount of a reasonable fee. A third alternative is presented where the passage of time renders prior findings of need and ability obsolete or untrustworthy or where, in response to an application for an allowance of attorney's fees, the other party alleges that there has been a substantial change in circumstances, in which case the appellate court may remand for a complete evidentiary hearing on need, ability to pay and the amount of a reasonable fee.

The district courts of appeal have not acted uniformly in their approach to this question. That is not to say, however, that a conflict exists since there is no rule, statute or other stricture establishing a procedure for treatment of this issue.

The First District Court of Appeal in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977), decided not to indulge in "problematic assumptions" recognizing that:

[I]t is impractical and inappropriate for an appellate court to entertain and resolve issues concerning the relative financial abilities of the parties at the time an appellate motion for allowance of fees is filed, or when a response may be seasonably filed, or when the case is submitted by argument or otherwise, or when the appellate decision is rendered.

350 So.2d at 1154. The court stated that, in regard to motions for attorney's fees [H]enceforth we shall undertake to dispose of such motions without either indulging problematic assumptions or undertaking a trial of new issues on appeal. When we consider a fee money award inappropriate regardless of the parties' financial circumstances, we shall exercise our prerogative to deny such motions. But when the trial court has awarded fee money to the moving party and it appears that a further award on account of appellate services is appropriate, assuming the relative financial needs and abilities of the parties are essentially the same as at final judgment, we shall provisionally grant the motion for allowance of fee money and remand to the trial court both the question of the amount of a reasonable fee for the appellate services of the movant's lawyer and the question of what part of that amount, if any, should be paid by the other party because of a present disparity in ability to pay. Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967, 970 (Fla. 1st DCA 1977).

350 So.2d at 1154.

The Fifth District Court of Appeal has apparently taken a somewhat similar approach, although the necessity for consideration by the trial court of the issues of need and ability to pay were expressly set out in the order granting fees in the first instance. In Eagan v. Eagan, 392 So.2d 988, 990 (Fla. 5th DCA 1981), the court specifically stated:

Appellee's motion for attorney's fees and costs is granted and, as permitted by Florida Rule Appellate...