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495 So. 2d 229

495 So.2d 229

11 Fla.L.Weekly 2061

Docket No. 85-2764.

Smith v. Smith

Richard Norman SMITH, Appellant, v. Ellen Marie SMITH, Appellee.

District Court of Appeal of Florida

Decided September 24, 1986.

District Court of Appeal of Florida · decided 1986-09-24

Key passage — most relied on by later courts

“use and possession of the home had been awarded to the wife until the youngest child attains the age of eighteen years,”

quoted by 1 later decision, including 965 So. 2d 1168 - Wright v. Wright

Relies on 382 So. 2d 1197 - Canakaris v. Canakaris · 434 So. 2d 61 - McIntyre v. McIntyre · 475 So. 2d 1352 - Ariko v. Ariko

Good law ✅— No negative treatment on recordhow we know

Decided 1986-09-24

How this case has been cited

Cited by 9 later decisions — most recently August 2007

9 state decisions

50198619902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Anthony A. Accorsi, Avon Park, for appellant.

¶2No Appearance for appellee.

¶3SCHOONOVER, Acting Chief Judge.

¶4Richard Norman Smith (the husband) appeals from a final judgment dissolving his marriage to Ellen Marie Smith (the wife). We affirm in part and reverse in part.

¶5In addition to dissolving the parties' marriage, the final judgment awarded to the wife primary custody of the children and exclusive possession of the parties' home until the youngest child attains the age of eighteen. The husband was required to pay, among other things, child support, rehabilitative alimony, one-half of the family's debts, and one-half of the mortgage payments on the home. We find that the court did not abuse its discretion in this portion of the final judgment, see Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), but that it did abuse its discretion in requiring the husband to pay one-half of the wife's attorney's fees.

¶6Pursuant to section 61.16, Florida Statutes (1985), a court may, after considering the parties' financial resources, order one party to pay to the other party a reasonable amount for attorney's fees, suit money, and costs. The purpose of this statute is to assure that each party has similar ability to secure competent counsel and to litigate the issues presented in the dissolution of marriage. Ariko v. Ariko, 475 So.2d 1352 (Fla. 5th DCA 1985); McIntyre v. McIntyre, 434 So.2d 61 (Fla. 5th *230 DCA 1983). It is not necessary for one spouse to be completely unable to pay attorney's fees in order for the other to be required to pay them, and such fees can in a proper case be awarded to avoid an inequitable diminution of the amounts granted as equitable distribution or support. Canakaris. After making a truly equitable distribution of marital assets, however, it is inequitable to diminish the asserts awarded to one party by requiring that party to pay the other party's attorney's fees where, on the basis of such distribution, each party has substantially equal ability to pay such fees. Ariko; McIntyre. In this case the only asset of substantial value was the parties' home, ownership of which was equally divided. As use and possession of the home had been awarded to the wife until the youngest child attains the age of eighteen years, the home was not available to be sold to obtain funds for the payment of attorney's fees. It appears, therefore, that the wife's indebtedness for attorney's fees will have to be paid from someone's future earnings. Because the wife has earning ability equal or superior to that of the husband, she has equal or superior ability to discharge her own debt for attorney's fees. It was therefore error for the trial court to order the husband to pay one-half of the wife's attorney's fees. McIntyre.

¶7We, accordingly, reverse the portion of the final judgment requiring the husband to pay one-half of the wife's attorney's fees. We affirm the final judgment in all other respects.

¶8Affirmed in part, reversed in part.

¶9HALL and SANDERLIN, JJ., concur.

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