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Worthington v. Harty

District Court of Appeal of Florida, Fourth District
Aug 14, 1996
677 So. 2d 1371 (Fla. Dist. Ct. App. 1996)

Summary

reversing award of attorney's fees for trial court's failure to consider ability to pay and need before ordering payment to wife in contempt proceedings instituted under chapter 61

Summary of this case from Johansson v. Johansson

Opinion

No. 95-3791.

August 14, 1996.

Appeal from the Fifteenth Judicial Circuit Court, Palm Beach County, John L. Phillips, J.

Andrew M. Chansen, Boca Raton, for appellant.

Frank B. Kessler, Lake Worth, for appellee.


We reverse an order awarding attorney's fees to Appellee, the former wife, in civil contempt proceedings against the former husband. The contempt was the husband's failure to comply with a court order to participate in mediation. There are no findings as to need and ability to pay in the record. The court ordered Appellant incarcerated until such time as he agreed to attend mediation. He subsequently complied, except as to payment of the fees, and was released from custody.

As a general rule, attorney's fees may be awarded as a sanction in civil contempt proceedings without findings as to the parties' respective need and ability to pay. E.g., Lamb v. Fowler, 574 So.2d 262 (Fla. 1st DCA 1991). However, the action here, initiated by the former husband to modify child support, is instituted under chapter 61, Florida Statutes. We deem section 61.16 (1), governing the imposition of fees under that chapter, applicable to the underlying petition.

As chapter 61 is applicable, ability to pay and need must be considered by the court before ordering payment of attorney's fees in contempt proceedings incident to enforcing orders relating to support or custody. See Armstrong v. Armstrong, 623 So.2d 1216, 1218 (Fla. 4th DCA 1993); Foster v. Foster, 528 So.2d 1295 (Fla. 1st DCA 1988); Warnhoff v. Warnhoff, 493 So.2d 52 (Fla. 4th DCA 1986), rev. denied, 503 So.2d 328 (Fla. 1987).

We can discern no basis for adopting an interpretation of the statutory requirements applicable to fees incurred in enforcing mediation orders different than that applicable to fees imposed in other enforcement proceedings initiated under chapter 61. We affirm, as moot, all other issues raised.

WARNER, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.


Summaries of

Worthington v. Harty

District Court of Appeal of Florida, Fourth District
Aug 14, 1996
677 So. 2d 1371 (Fla. Dist. Ct. App. 1996)

reversing award of attorney's fees for trial court's failure to consider ability to pay and need before ordering payment to wife in contempt proceedings instituted under chapter 61

Summary of this case from Johansson v. Johansson

recognizing that attorney's fees are recoverable in contempt action for enforcement of court order brought under statute governing the dissolution of marriage, which provided for the imposition of fees against the "noncompliant party," but holding that the trial court must consider the noncompliant party's ability to pay before awarding fees

Summary of this case from Poole v. Bureau of Support Enf't ex rel. Roebuck

deeming section 61.16 applicable to a former wife's motion for attorney's fees in a civil contempt proceeding instituted upon the former husband's failure to comply with a court order, and holding that need and ability to pay must be considered by the trial court before ordering payment of attorney's fees in contempt proceedings incident to enforcing orders relating to support

Summary of this case from Scott v. Scott
Case details for

Worthington v. Harty

Case Details

Full title:LARRY WORTHINGTON, APPELLANT, v. ALISON MacGREGOR HARTY, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Aug 14, 1996

Citations

677 So. 2d 1371 (Fla. Dist. Ct. App. 1996)

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Poole v. Bureau of Support Enf't ex rel. Roebuck

It is clear, then, that the Legislature intended to provide for attorney's fees incurred as a result of the…

Johansson v. Johansson

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