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685 So. 2d 1388

Docket No. 96-1961.

Aue v. Aue

Denise C. AUE, Appellant, v. Steven J. AUE, Appellee.

District Court of Appeal of Florida

Decided January 10, 1997.

District Court of Appeal of Florida · decided 1997-01-10

Key passage — most relied on by later courts

“Although trial courts have the authority pursuant to section 61.16 to deny fees for various forms of litigation misconduct in proceedings for dissolution of marriage, “there is no authority for denying attorney’s fees in dissolution cases solely for the failure to accept an offer of settlement.””

quoted by 2 later decisions, including 900 So. 2d 737 - Levy v. Levy, 206 So. 3d 74 - Nancy Palmer, n/k/a Nancy Walgis v. Danny Palmer

“Section 61.16 constitutes a broad grant of discretion, the operative phrase being “from time to time.” The provision simply says that a trial court may from time to time, i.e., depending on the circumstances surrounding each particular case, award a reasonable attorney’s fee after considering the financial resources of both parties. Under this scheme, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include factors such as the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Had the legislature intended to limit consideration to the financial resources of the parties, the legislature easily could have said so. * * * We further find that a court may consider all the circumstances surrounding the suit in awarding fees under section 61.16. Moreover, in situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, we find that the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.”

quoted by 1 later decision, including 88 So. 3d 253 - Hallac v. Hallac

Relies on Peavy v. State · Mettler v. Mettler · 600 So. 2d 1222 - Walsh v. Walsh

Good law ✅— No negative treatment on recordhow we know

Decided 1997-01-10

How this case has been cited

Cited by 6 later decisions — most recently August 2016

6 state decisions

30199720002010decided

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 →

¶1E. Jane Brehany of Myrick, Davis & Brehany, P.A., Pensacola, for Appellant.

¶2Kathryn E. Errington, Pensacola, for Appellee.

¶3PER CURIAM.

¶4Denise C. Aue, the former wife, appeals a final judgment of dissolution, arguing that the trial court erred in denying her request for an award of attorney's fees based solely on the trial court's finding that she unreasonably rejected her former husband's offer of child support and alimony. We reverse and remand for further proceedings.

¶5By the final judgment, the former wife was awarded $500 per month in rehabilitative alimony for three years; Steven J. Aue, the former husband, the appellee, was further ordered to pay $1,300 per month in child support. Prior to entry of the final judgment the former husband offered to pay $958 per month for 42 months as rehabilitative alimony, child support in the amount of $1,342 per month as well as the former wife's monthly COBRA insurance and other deductibles and co-payments. The former wife rejected this offer. The total support amount awarded in the final judgment was obviously less than the settlement offer. In its order denying the former wife's request for attorney's fees, the trial court stated that its decision was not based upon the parties' earnings, but on its finding that the former wife was "unreasonable" in declining the former husband's support offer.

¶6Section 61.16 provides that a trial court "may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees...." While the trial court may consider special circumstances in addition to the financial circumstance of the parties when considering the entitlement to attorney's fees, no such circumstances exist in the instant case. Cf. Mettler v. Mettler,569 So.2d 496 (Fla. 4th DCA 1990). Further, there is no authority for denying attorney's fees in dissolution cases solely for the failure to accept an offer of settlement. See, Barnette v. Barnette,658 So.2d 1246 (Fla. 4th DCA 1995). In fact, section 45.061(4), Florida Statutes, specifically exempts dissolution proceedings from the offer of settlement statute.

¶7Accordingly, we reverse the denial of the former wife's request for fees. On remand, the trial court is directed to reconsider the *1389 former wife's request in light of the parties' respective needs and ability to pay. Walsh v. Walsh,600 So.2d 1222 (Fla. 1st DCA 1992); Dresser v. Dresser,350 So.2d 1152 (Fla. 1st DCA 1977).

¶8REVERSED and REMANDED for further proceedings.

¶9JOANOS, WOLF and VAN NORTWICK, JJ., concur.

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