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348 So. 2d 597

Burns v. Snedaker

District Court of Appeal of Florida · decided 1977-06-30

Cited by 2 later decisions — most recently June 1983

2 state decisions

Key passage — most relied on by later courts

“"Although appellee has requested attorney's fees, his motion fails to allege his need or appellant's ability to pay. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977) ... and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977)... . Therefore, although appellee prevails in the appeal there is no basis for our determination as to whether or not an attorney's fee may be properly allowed.... Accordingly, the motion for attorney's fees is denied." 348 So.2d at 598.”

quoted by 1 later decision, including 350 So. 2d 1152 - Dresser v. Dresser

Relies on 348 So. 2d 592 - Patterson v. Patterson · 346 So. 2d 591 - Johnson v. Johnson · Snedaker v. Snedaker

Good law ✅— No negative treatment on recordhow we know

Decided 1977-06-30

View the full empirical analysis of this case →

PER CURIAM.

¶1The marriage of the parties was dissolved by final judgment by which custody of the child of the marriage was awarded to the mother, but that aspect of the final judgment was reversed by this court. See Snedaker v. Snedaker, 327 So.2d 72 (Fla. 1st DCA 1976). The child’s mother, appellant sub judice, thereafter remarried and petitioned for modification and award of custody, alleging a change in circumstances. The trial judge denied the petition and awarded the husband, appellee here, attorney’s fees pursuant to Florida Statute 61.16. This appeal followed.

¶2It is axiomatic that the orders of a trial judge reach an appellate court clothed with a presumption of correctness. Our review of the record fails to reveal error.

¶3Appellee has filed a motion for an award of attorney’s fees incident to this appeal. Allowance of attorney’s fees on appeal is governed by the same considerations as those applicable in the court from whence the appeal emanates. Although appellee has requested attorney’s fees, his motion fails to allege his need or appellant’s ability to pay. See Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977) and Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977). Therefore, although appellee prevails in the appeal there is no basis for our determination as to whether or not an attorney’s fee may be properly allowed. Though it is appropriate, when we determine that an award of attorney’s fees is proper, to remand the case to the trial court for the purpose of taking evidence to determine the amount of the award we do not deem it appropriate, in a domestic relations matter, that the case be remanded for the trial court to determine whether or not any fee should be allowed for services of an attorney incident to the appeal. Accordingly, the motion for attorney’s fees is denied.

¶4Motion denied.

BOYER, C. J., and McCORD and MILLS, JJ., concur.
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