Dybalski v. Dybalski, 108 So. 3d 736

Husband Kevin Dybalski appeals an order awarding attorney’s fees to wife Angela Dybalski and this Court reverses the award for lack of vexatious conduct.
The dissolution proceedings began in 2009 with a final consent judgment resolving custody and distribution; a supplemental judgment later redistributed property to roughly a fifty/fifty split.
Husband previously appealed an attorney’s fee award for the first appeal; the fee was affirmed per curiam in 2012.
The current appeal concerns attorney’s fees awarded to wife in connection with husband’s post-dissolution motions, including a supplemental petition to modify custody filed July 30, 2010 and a related contempt/enforcement motion.
Motions were referred to a magistrate on May 11, 2011; before the September 22, 2011 hearing, the magistrate denied a continuance, and husband dismissed all three motions.
In an January 13, 2012 order, wife was awarded $5,200 for defense of the modification petition based on husband’s withdrawal; the court characterized the withdrawal as a de facto dismissal and cited “bad faith”/“whip sawing,” but found only limited grounds for need and ability to pay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the fee award was error for lack of vexatious conduct	Dybalski argues no vexatious conduct-supported by record.	Dybalski contends wife’s fees justified under Rosen/Elliott standards for over-litigation or harassment.	Fee award reversed: no evidence of vexatious conduct.
Whether withdrawal of the petition supports bad faith sufficient for fees	Withdrawal was legitimate and not in bad faith.	Court treated withdrawal as deceptive, enabling fee recovery.	Withdrawal alone insufficient to show bad faith; not supported for fees.
Whether the trial court abused discretion in applying fee-shifting standards	Court should have awarded no fees given lack of need and ability to pay.	Fees were warranted under Rosen/Elliott due to conduct in proceedings.	Abuse of discretion; the record fails to show governing factors warranted fees.

Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) (analyze needs, resources, and equitable considerations in fee awards)
Rashid v. Rashid, 35 So.3d 992 (Fla. 5th DCA 2010) (abuse of discretion when equal financial positions; need for detailed findings)
Elliott v. Elliott, 867 So.2d 1198 (Fla. 5th DCA 2004) (conduct causing unnecessary litigation can support fees)
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) (fee awards reviewed for abuse of discretion)
Dake v. Kirkley, 767 So.2d 1289 (Fla. 5th DCA 2000) (fees recoverable for improper conduct causing extensive litigation)
Zanone v. Clause, 848 So.2d 1268 (Fla. 4th DCA 2003) (over-litigation and persistent litigation may warrant fees)