Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, June 16, 2006

Case Law Development: Attorneys Fees to Be Based on Relative Financial Ability not Success in Litigation

A Florida trial court denied attorney’s fees to wife in a child support modification and abatement action on the basis that she had received a substantial tax return the prior year and that her attorney had taken several “needless actions” in the litigation. The Florida Court of Appeals reversed, finding that the trial court erred in basing the fee decision on these factors and ignoring the gross disparity in income and resources between husband and wife. The court noted that the purpose of the fee-shifting statute in Florida family action statutes is “to ensure that both parties will have similar financial ability to obtain competent legal counsel. The primary factor in considering whether to award one party's fees is the financial resources of the parties. Other factors that may also be considered include the merits of the parties' respective positions, the duration of the litigation, whether the litigation is brought or maintained primarily to harass, or whether the defense is brought primarily to frustrate or stall.”

Here, the court of appeals noted that one need not be totally unable to afford attorneys fees in order to merit an award.  Neither is success on issues necessary in order to be awarded attorneys fees. The court found that wife’s attorney had provided competent representation and had that there was no evidence of bad faith in any of the actions relied on by the trial court to deny fees.

Humerickhouse v. Humerickhouse, June 16, 2006.
Opinion on the web (last visited June 16, 2006)

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