WENDY LEE CIARFELLA, APPELLANT,
v.
EDMUND D. CIARFELLA, APPELLEE
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Wendy Ciarfella appealed a trial court judgment that increased child support from $160 to $375 per month and denied her attorney's fees. The court affirmed the child support award but reversed the denial of attorney's fees, holding that an implied contract for attorney's fees existed and remanding for proper consideration under Florida Statute section 61.16.
The trial court properly exercised its discretion in awarding $375 per month in child support, but erred in denying attorney's fees. An implied or quasi-contract for attorney's fees existed based on the testimony that the attorney was employed to provide services with an expectation of payment, entitling the former wife to recover fees under Florida Statute section 61.16.
[1] A trial court's award of child support is within its discretion if based on established facts.
[2] A former spouse may be entitled to attorney's fees in a child support modification proceeding pursuant to section 61.16, Florida Statutes.
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Join FLexlaw to unlock all legal intelligence“It is well established that where one employs an attorney to perform legal services, whether in a regular court procedure or otherwise, and there is not, at the time of such employment nor subsequent thereto, an express agreement between the parties as to the amount the attorney is to be paid for his services, the law under such conditions and circumstances, implies a contract upon the part of one employing such attorney, to pay him a reasonable compensation for his services.”
Establishes the foundational principle that an implied contract for attorney's fees arises when no express agreement exists but services are rendered with expectation of payment.
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Join FLexlaw to unlock all legal intelligenceWendy Ciarfella sought modification of child support in a proceeding against her former husband Edmund. The trial court increased monthly child suppor…
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SHARP, W., Associate Judge.
Wendy Ciarfella, the former wife, appeals from a judgment which increased an award for child support for the parties’ child from $160.00 to $375.00 per month, and which denied her an award of attorney’s fees from her former husband, Edmund Ciarfella. We affirm the amount of child support awarded by the trial court as being within its discretion, based on the facts established in this record. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). However, we hold the trial court erred in failing to consider the former wife’s entitlement to attorney’s fees pursuant to section 61.16, Florida Statutes.
The record in this case established that the former wife had no formal retainer agreement with her attorney regarding payment, of his fees. She understood that her attorney would first seek to recover his fees from the former husband. However, she testified that she felt obligated to pay any fees due her attorney that were not paid by her former spouse. The trial court denied attorney’s fees on the sole ground that:
the evidence before the court does not support the petitioner’s claim for attorney fees, there being insufficient testimony or evidence that the petitioner [the wife] is obligated to pay attorney fees.
Although there was no express contract for attorney’s fees in this case, the testimony established that there was at least an implied contract, or quasi-contract, which entitled Wendy’s attorney to be paid for the services rendered in this case. See Zimmerman v. Livnat, 507 So. 2d 1205 (Fla. 4th DCA 1987); Behar v. Root, 393 So. 2d 1169 (Fla. 3d DCA 1981). Wendy’s attorney was employed to represent her in this modification proceeding, and he performed valuable services on her behalf (incidentally, quite successfully). The services were performed with the expectation of payment.
We think an award of attorney’s fees in this case to the former wife is supported by the rule of law enunciated in Lamoureux v. Lamoureux, 59 So. 2d 9, 12 (Fla.1951):
It is well established that where one employs an attorney to perform legal services, whether in a regular court procedure or otherwise, and there is not, at the time of such employment nor subsequent thereto, an express agreement between the parties as to the amount the attorney is to be paid for his services, the law under such conditions and circumstances, implies a contract upon the part of one employing such attorney, to pay him a reasonable compensation for his services.
Accordingly, we affirm the judgment except for the denial of attorney’s fees to the former wife. We remand with directions that the trial court consider the appellant’s request for attorney’s fees pursuant to section 61.16, with due regard for the comparative financial resources of both parties, and the reasonableness of the fees requested for the service rendered in this cause.
AFFIRM IN PART; REMAND.
DOWNEY and ANSTEAD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Bart M. Behar v. Root, 393 So. 2d 1169 (Fla. 3d DCA 1981)
- Zimmerman v. Eliezer J. Livnat and Esther Livnat, 507 So. 2d 1205 (Fla. 4th DCA 1987)