ANNE LOIS BOROWIAK, APPELLANT,
v.
EDWARD ALBERT BOROWIAK, APPELLEE
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Anne Lois Borowiak appeals from a dissolution judgment that denied her attorney fees despite a property settlement agreement explicitly providing that the husband would pay attorney fees for any subsequent dissolution proceedings. The court reversed, holding that the trial court abused its discretion by implicitly rejecting a clear contractual obligation in the property settlement agreement.
The court reversed and remanded, holding that under the express terms of the property settlement agreement, the husband agreed to pay attorney fees in any subsequent dissolution, and the trial court abused its discretion by denying such fees. The court reasoned that given the substantial amount of property involved, it would be illogical to assume the wife would not want counsel representation, and therefore the trial court's denial of fees constituted an implicit rejection of the settlement agreement.
[1] A property settlement agreement in a dissolution action may obligate one party to pay attorney fees for the other party's representation in the dissolution proceedings.
[2] A trial court abuses its discretion by implicitly rejecting a provision of a validly executed property settlement agreement.
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Join FLexlaw to unlock all legal intelligence“Husband agrees to pay attorneys fees for preparation of this instrument and any subsequent dissolution.”
The express contractual provision that is the basis for the wife's entitlement to attorney fees
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Join FLexlaw to unlock all legal intelligenceAppellee/husband petitioned for dissolution of marriage and sought court approval of a previously-executed property settlement agreement prepared by h…
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[*287] PER CURIAM.
Anne Lois Borowiak appeals from a final judgment of dissolution of her marriage to Edward Borowiak which denied her attorney fees.
Appellee/husband petitioned for dissolution of marriage. In the petition, court approval of a previously-executed property settlement agreement was sought. The pre-dissolution agreement which had been prepared by appellee and his counsel provided for the division of various real and personal property. The agreement also provided that nothing in it would be construed to prevent institution of an action for dissolution of marriage subject to the following qualifications:
In any dissolution action, the Wife, provided the Husband is not in default under this Agreement, shall make no claim for alimony, either temporary or permanent, for support for the foster children, either temporary or permanent, or for attorney’s fees, except in accordance with the provisions of this Agreement. (Emphasis added)
A subsequent paragraph of the agreement provided:
Husband agrees to pay attorneys fees for preparation of this instrument and any subsequent dissolution.
Appellant filed an answer and counterclaim in which she sought attorney fees and disposition of certain property not included in the property agreement. She did not attack the property settlement, but, like appellee, she sought dissolution and the court’s approval of the property settlement and prayed for a reasonable attorney’s fee in accordance with the last above quoted paragraph of the property settlement agreement.
The trial court granted the petition for dissolution. In its final judgment the trial court found the property settlement agreement had been executed voluntarily after full disclosure, approved the agreement, and denied appellant attorney fees.
We reverse. Under the agreement appel-lee agreed to pay attorney fees in any subsequent dissolution. In light of the amount of property involved here it would be illogical to assume that appellant would not desire to have her interests represented by counsel during such proceedings.1 The trial court’s denial of attorney fees was in effect an implicit rejection of that part of the property settlement agreement and was under these circumstances an abuse of discretion. See Byrd v. Byrd, 324 So. 2d 659 (Fla.2d DCA 1976). In light of the agreement, appellant’s financial need and appel-lee’s ability to pay were not relevant considerations.
Accordingly, we reverse and remand for further proceedings in accordance with this opinion.
BOARDMAN, C. J., and HOBSON and SCHEB, JJ., concur. . While the total value of the real and personal property involved is not apparent from the record, the settlement agreement contained a valuation of part of the property totaling in excess of $70,000. In his brief appellee conceded that appellant would have been entitled to attorney fees had she initiated the dissolution.
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Citator
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Tucker v. Tucker, 513 So. 2d 733 (Fla. 2d DCA 1987)…erve that the ex-husband’s attack upon the trial court’s refusal to receive evidence bearing upon his financial status, as it would affect his agreement to pay a reasonable fee, fails to include any reference to our decision in Borowiak v. Borowiak, 341 So. 2d 286 (Fla. 2d DCA 1977), in which it is stated that “[i]n light of the agreement, appellant’s financial need and appel-lee’s ability to pay [are] not relevant considerations.” 341 So. 2d 287. In the face of Borowiak and the absence of a compelling reason…
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In re the Marriage of Wanda Lee Schneider v. Schneider, 389 So. 2d 311 (Fla. 2d DCA 1980)…he court had no discretion at that stage to remake the terms of a valid property settlement as evidenced by the stipulation, and thus could not apportion the fees. We agree that the lower court was bound by the stipulation. See Borowiak v. Borowiak, 341 So. 2d 286 (Fla.2d DC A 1977). We note that the agreement provides for award of a reasonable fee to appellant and does not provide for apportionment of that fee. Having found that a reasonable fee was $7,425.00, the court’s judicial labor was complete. The tri…
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Owens v. Owens, 476 So. 2d 791 (Fla. 1st DCA 1985)…arty obtaining the agreement. Bubenik v. Bubenik, 392 So. 2d 943 (Fla. 3d DCA 1980). Further, where a trial court implicitly rejects that part of a property settlement dealing with attorney’s fees, it is an abuse of discretion. Borowiak v. Borowiak, 341 So. 2d 286 (Fla. 2d DCA 1977). Accordingly, we reverse that portion of the decree which ordered Conrad to pay his wife’s attorney’s fees. SMITH and THOMPSON, JJ., concur.…
Authorities Cited
- Deanna v. Byrd, 324 So. 2d 659 (Fla. 2d DCA 1975)