90 So. 3d 970
Fla. Dist. Ct. App.2012Background
- Sandra Goldstein appeals an amended final judgment of dissolution arguing fees and costs denial and lack of financial-need findings.
- She is 60, unemployed, disabled, with Social Security income; husband is 61, retired teacher with a $5,380.09 monthly pension.
- Marital home has no equity, is worth $62,500, but encumbered by a $119,700 mortgage; wife kept exclusive use and paid carrying costs.
- Most net worth is in husband’s retirement assets; equitable distribution planned to advance $164,000, with husband already receiving his half.
- Trial court awarded wife $1,000/month permanent alimony and six months retroactive; found wife’s stated needs exceeded ability to pay.
- Court allocated a Citi CD entirely to wife on the Schedule, though funds were used for living expenses after husband left.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fees and costs award standard | Wife argues Rosen factors require a fee award due to financial disparity. | Husband contends court properly exercised discretion denying fees. | Abuse of discretion; award at least some fees and costs required. |
| Need and ability findings | Wife asserts lack of written need/ability-to-pay findings was error. | Husband argues no written findings were necessary for denial. | Remand for explicit need/ability findings; error to omit. |
| Equitable distribution of dissipated asset | Citi CD depletion due to wife’s living expenses; asset should not be attributed to her. | Husband contends depletion was misconduct by wife. | No misconduct proven; reduce wife’s asset value by half and increase equalizing payment. |
| Attorney’s fees on remand | Wife seeks partial recoveries of fees and costs on remand. | Husband argues proportionate costs should be assigned. | Court to determine portions consistent with section 61.16. |
Key Cases Cited
- Derrevere v. Derrevere, 899 So.2d 1152 (Fla. 4th DCA 2005) (central factors: financial need and ability to pay)
- Cunningham v. Cunningham, 918 So.2d 412 (Fla. 2d DCA 2006) (court abused discretion when unequal fees despite assets)
- Hutto v. Hutto, 842 So.2d 994 (Fla. 2d DCA 2003) (partial contribution to wife’s fees warranted by disparity)
- Wolfe v. Wolfe, 864 So.2d 1229 (Fla. 4th DCA 2004) (fees awarded where husband’s income exceeded wife’s)
- Sheehan v. Sheehan, 943 So.2d 818 (Fla. 4th DCA 2006) (dissipation requires misconduct finding for asset inclusion)
- Tillman v. Altunay, 44 So.3d 1201 (Fla. 4th DCA 2010) (dissipated assets require misconduct finding)
- Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008) (dissipation must be intentional misconduct)
- Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) (fees in dissolution hinge on need and ability to pay)