JEFFREY ELENEWSKI, APPELLANT,
v.
ROSLYN ELENEWSKI, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a family law appeal, the court vacated an attorney's fee award against an ex-husband for bringing a baseless motion to modify child support. The court held that while such fees may be awarded, they are limited by the payor's financial ability to pay, which the trial court failed to consider.
No. Although attorney's fees may be awarded against a party who brings a baseless modification action, such an award is limited by the payor's financial ability to respond, even when the claim is determined to be without merit. The trial court must consider all relevant factors including lack of merit and the payor's financial position.
[1] An award of attorney's fees against a party who baselessly brings an action for modification is limited by that party's financial ability to pay.
[2] A trial court must consider a party's inability to pay when determining an award of attorney's fees in a domestic case.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“such an award is limited, as in the usual domestic situation, by that party's financial ability to respond”
Establishes the core holding that attorney's fees in domestic cases, even when based on baseless litigation, cannot exceed the payor's ability to pay.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJeffrey Elenewski brought a motion to modify child support payments in his divorce case. The trial judge denied the motion as without merit and, witho…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Florida Patient'S Compensation Fund V. Rowe Standard For Attorney'S Fees cases and more on FLexlaw
SCHWARTZ, Chief Judge.
Without consideration of the ex-husband’s alleged inability to pay, the trial judge taxed against him all of the attorney’s fees expended by his ex-wife in defense of his unsuccessful motion for modification of the child support payments provided in the final judgment of dissolution. The only basis of the award was the fact that the husband’s motion had been found to be without merit and denied by the court. The ex-husband appeals and we vacate the order under review.
While it is certainly true that attorney’s fees may be assessed on that ground against a party who baselessly brings an action for modification, and thus causes the unnecessaryexpenditure of fees by the other side, see Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988); Goldman v. Smargon, 524 So. 2d 479 (FLa. 3d DCA 1988); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981), such an award is limited, as in the usual domestic situation, by that party’s financial ability to respond. Meloan, 525 So. 2d at 936-37. See generally Travieso v. Travieso, 447 So. 2d 940 (Fla. 3d DCA 1984), aff’d in part, quashed in part, 474 So. 2d 1184 (Fla.1985); Bucci v. Bucci, 350 So. 2d 786 (Fla. 3d DCA 1977).
Since the ex-husband proffered a good faith “defense” that he was unable to pay, which was not considered below, we order a new hearing on the attorney’s fee issue at which all relevant factors including the two identified in this opinion, may be explored. See Meloan, 525 So. 2d at 937 (“On remand, we direct the trial court to take into account the aforementioned factors [including the lack of merit of the parties’ respective positions] as well as Henry’s superior financial position in determining an equitable award of Carol’s attorney’s fees.”). In cases such as Jaffee, 394 So. 2d at 447, in which there is no question of the ability to pay of the spouse who has maintained an unwarranted claim for modification, the effect of the “baseless litigation” ground for awarding attorney’s fees is to render inapplicable the principles that attorney’s fees are not awardable when both parties are equally able to pay, Horton v. Horton, 433 So. 2d 1386 (Fla. 5th DCA 1983); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982); Bullard v. Bullard, 380 So. 2d 1090 (Fla. 3d DCA 1980), and that inability of the spouse for whom fees are claimed is ordinarily a prerequisite of entitlement. See Child v. Child, 474 So. 2d 299 (Fla. 3d DCA 1985), review denied, 484 So. 2d 7 (Fla.1986).
As we read the prior cases, however, and as we specifically hold here, fees in domestic cases may not, even in these circumstances, exceed the miscreant’s ability to pay.
Although it is not strictly necessary to reach the question, we note the appellee’s concession that the amount of the fee was not determined below after an appropriate hearing or in an appropriate order. We thus direct that the proceedings after remand shall conform with the requirements of Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985), and other pertinent authority.
Vacated and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Arouza v. Goldin C. Arouza, 670 So. 2d 69 (Fla. 3d DCA 1995)…sary expenditure of fees, Nash v. Nash, 624 So. 2d 370 (Fla. 3d DCA 1993); Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992), cause dismissed, 617 So. 2d 322 (Fla.1993); Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th DCA 1991); Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988), provided that “such an award is limited, as in the usual domestic situation, by that party’s financial ability to respond.” Elenewski, 528 So. 2d at 1355; accord Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA), review denied, 5…
-
Steinfeld v. Steinfeld, 565 So. 2d 366 (Fla. 4th DCA 1990)…eritorious, baseless motions and actions.... [and that] [w]hen such conduct occurs, the courts of this state have recognized that the victimized spouse is entitled to attorney’s fees, regardless of economic status. We find Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988), instructive on this point. In Elenewski, the court opined: In cases such as Jaffee, 394 So. 2d at 447, in which there is no question of the ability to pay of the spouse who has maintained an unwarranted claim for modification, t…
-
Pyszka v. Mullin, 602 So. 2d 956 (Fla. 3d DCA 1992)…ecessary expense in seeking discovery to determine her husband’s interest in the law firm or in complying with this court’s order to file a response to the petition. See Eisner v. Markovich, 585 So. 2d 312 (Fla. 3d DCA 1991); Elenewski v. Elenewski, 528 So. 2d 1354 (Fla. 3d DCA 1988); Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988); Sutter v. Sutter, 578 So. 2d 788 (Fla. 4th DCA 1991) and cited cases. Accordingly, we deny the husband’s motion for rehearing. JORGENSON, J., concurs. . The husband had f…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)
- Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981)
- Meloan v. Coverdale, 525 So. 2d 935 (Fla. 3d DCA 1988)
- Bucci v. Bucci, 350 So. 2d 786 (Fla. 3d DCA 1977)
- Earlene P. Bullard v. Bullard, 380 So. 2d 1090 (Fla. 3d DCA 1980)
- Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982)
- Jones v. State, 412 So. 2d 38 (Fla. 3d DCA 1982)
- Child v. Child, 474 So. 2d 299 (Fla. 3d DCA 1985)
- Travieso v. Travieso, 447 So. 2d 940 (Fla. 3d DCA 1984)