June 29, 2012

Bresky Law Obtains Reversal of Order Denying Wife’s Attorney’s Fees and Attributing Wife Depleted Marital Assets

Goldstein v. Goldstein
Case No. 4D10-3081

We represented a former wife in an appeal from an amended final judgment of dissolution of marriage. The trial court had denied our client her attorney’s fees and costs without making any findings as to our client’s need and the former husband’s ability to pay. Additionally, in the equitable distribution the trial court had attributed to our client a marital account that she had used to pay living expenses after the former husband had moved out and stopped paying any of the bills associated with the marital home.

On appeal, we argued that the trial court abused its discretion in denying our client her fees and costs without making the appropriate findings as to need and ability to pay. We also argued that the trial court had erred in attributing the depleted account to our client in equitable distribution where the trial court had not made the required finding that depletion of the account was due to any misconduct by our client.

The Fourth District Court of Appeal agreed that the trial court had erred in failing to make the findings regarding need and ability to pay attorney’s fees and costs. The Fourth DCA further held that the trial court erred in denying our client her fees and costs, based on the significant income disparity between the parties as shown by the record. The Fourth DCA also held that the depleted account could not be attributed to our client in equitable distribution without a finding of misconduct, and that our client’s actions in spending the funds on reasonable living expenses did not qualify as such misconduct. See Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010); Sheehan v. Sheehan, 943 So. 2d 818, 822 (Fla. 4th DCA 2006). The Fourth DCA reversed the amended final judgment and remanded it to the trial court for an award of fees to our client and a credit to her of her marital portion of the depleted account to be included in her equalizing payment.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing. ] **