GENIE SUE ANNE MCCREERY BROMANTE, APPELLANT,
v.
THOMAS G. BROMANTE, APPELLEE

Fla. 1st DCA | 1991-03-29
No. 90-2439
SMITH and WIGGINTON, JJ., concur.
577 So. 2d 662 Florida District Court of Appeal, First District (1991) Caution
Cited by 19 cases

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Synopsis

A former wife appeals a final divorce decree, challenging the trial court's classification of her ex-husband's townhouse as non-marital property, the award of no marital assets, and the denial of attorney fees. The appellate court affirmed the property and asset determinations but reversed and remanded the attorney fees issue, finding the trial court improperly relied on a $5,000 retainer (borrowed from the wife's father) as evidence of her financial ability to pay.


Holding

The appellate court affirmed the trial court's determinations regarding the townhouse and marital assets as non-marital property and the finding that marital assets were consumed by marital debt. However, the court reversed the denial of attorney fees and remanded, holding that the trial court must determine the parties' financial ability to pay fees based only on financial resources within their individual control, not on borrowed funds or financial assistance from family members.


Headnotes

[1] A trial court does not abuse its discretion in finding property titled in one spouse's name is not a marital asset if all marital assets were used to pay marital debt.

[2] A trial court's determination of a party's ability to pay attorney fees and costs must be based solely on the financial resources available to that party, not on financia…

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Key Quotes

“The financial resources that should be considered in assessing the relative financial ability of the parties are the resources the parties have available without their having to look beyond the financial resources subject to their individual control.”

Establishes the legal standard for determining financial ability to pay attorney fees—limited to resources within individual control, excluding family assistance.

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Facts & Procedural History

In a dissolution of marriage proceeding, the former husband owned a townhouse titled in his name. The trial court found this townhouse was not marital…

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Opinion of the Court
WENTWORTH, Senior Judge.

WENTWORTH, Senior Judge.

Former wife, Genie Sue Anne McCreery Bromante, appeals a final order of dissolution of marriage. She contends that the trial court abused its discretion in (1) finding a townhouse titled in the name of her former husband, Thomas G. Bromante, was not a marital asset, (2) failing to award her any marital assets, and (3) denying attorney fees. We affirm in all respects except as to fees, on which we remand for further consideration.

We find no basis to disturb the court’s finding that the former husband’s townhouse was not marital property and its finding that all marital assets were used to pay marital debt. The only issue which requires discussion is the trial court’s determination as follows with respect to fees:

Testimony at trial revealed that the wife’s attorney received a $5,000.00 retainer. The court founds that the wife therefore had the ability to pay fees and costs to her attorney and the husband was not in a financial position superior to the wife so that he should be required to pay her attorney’s fees and other costs. The court in Azzarelli v. Pupello, 555 So. 2d 1276 (Fla. 2d DCA 1989) held:
The financial resources that should be considered in assessing the relative financial ability of the parties are the resources the parties have available without their having to look beyond the financial resources subject to their individual control. Just as courts will not consider family assets or the assets of a new spouse in determining the financial ability of a husband or wife to pay obligations arising out of a dissolution of marriage, neither should such assets be imputed to an otherwise needy spouse even though such needy spouse may be offered financial assistance by family or a new spouse.

In the present case neither the record nor order contains an additional explanation for the trial court’s finding that former wife had the ability to pay fees and costs simply based on the fact that her attorney received a $5,000 retainer.1 However, the former wife testified without contradiction that she borrowed the money from her father who had to take the money out of his retirement fund. We therefore reverse the order as to denial of fees and costs and remand the cause with directions to dispose of the issue and to determine the parties’ financial ability to pay fees based only upon the financial resources of the parties and not the financial assistance of family or friends.

Affirmed in part and reversed in part and remanded for proceedings consistent herewith.

SMITH and WIGGINTON, JJ., concur. . We do not at this point construe, as appellee inferentially argues, the terms of the order denying alimony as intended to impute income to the former wife based on factors stated as follows:

[T]he court finds that the wife has failed to establish a need for such alimony. She is young (28 years of age), healthy, attractive, and possesses a four year college degree.

The order properly recognizes the former wife’s apparent choice of volunteer over paid employment during the proceedings as a continuation of the typical pattern indulged by the parties throughout their association.


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Cited By

  • Dep't of Health & Rehabilitative Servs. v. Holland, 602 So. 2d 652 (Fla. 5th DCA 1992)
    …ino, 411 Pa.Super. 424, 601 A. 2d 1240 (Pa.Super.1992) (age of majority is 21); Kelley v. Ryals Services, Inc., 585 So. 2d 1371 (Ala.1991) (age of majority is 19). . See Askegard v. Askegard, 584 So. 2d 47 (Fla. 1st DCA 1991); Bromante v. Bromante, 577 So. 2d 662 (Fla. 1st DCA 1991); Lord v. Lord, 566 So. 2d 35 (Fla. 2d DCA 1990); Pirino v. Pirino, 558 So. 2d 171 (Fla. 5th DCA 1990); Lester v. Lester, 547 So. 2d 1241 (Fla. 4th DCA 1989).…
  • Rogers v. Rogers, 824 So. 2d 902 (Fla. 3d DCA 2002)
    …a party’s ability to pay and a party’s need for attorney’s fees and costs, the general rule is that the trial court may only consider the “financial resources of the parties and not the financial assistance of family or Mends.” Bromante v. Bromante, 577 So. 2d 662, 663 (Fla. 1st DCA 1991); see also Bedell v. Bedell, 583 So. 2d 1005 (Fla.1991); Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995); Sol v. Sol, 656 So. 2d 206 (Fla. 3d DCA 1995); Shiveley v. Shiveley, 635 So. 2d 1021 (Fla. 1st DCA 1994). An excep…
  • Merri Melody Huntley v. Huntley, 578 So. 2d 890 (Fla. 1st DCA 1991)
    …the wife of all the proceeds from the sale of the marital home. On remand, the judge shall reconsider attorneys’ fees and determine the parties’ financial abilities to pay the fees based only upon their financial resources. See Bromante v. Bromante, 577 So. 2d 662 (Fla. 1st DCA 1991). That portion of the final judgment dissolving the parties’ marriage and awarding the proceeds from the sale of the marital home to the wife as lump sum alimony is AFFIRMED. The remaining determinations which depend upon the rec…

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