Horton v. HortonHorton v. Horton
No appearance for appellee.
DAUKSCH, Judge.
This is an appeal from а judgment in a marriage dissolution case. The questions on appeal are whether the trial court erred in awarding a special equity in property аnd whether the trial court erred in requiring the husband to pay the wife‘s attorney‘s fees. We reverse.
Apparently the trial judge found that because the wife contributed somewhat to the support of the husband while they were married that she аcquired a special equity in his property which he bought before they werе married. It is axiomatic that any asset acquired before a marriage is nоt a marital asset. Canakaris v. Canakaris,
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4. That the Respondent-Wife/Counter Petitioner has contributed to the welfare of the Petitioner-Husband and to the improvement of the assets owned by him during the time of the marriage and that she is entitled to a special equity as a result of this contribution.
5. That the Petitioner-Husband shall pay directly to the Respondent-Wife the sum of $4,500.00, which shall include and be a complete settlement of all claims for alimony of any kind whatsoever, costs of this action and attorney‘s fees.
6. The aforesaid sum shall be paid to the attorney for Respondent-Wife, David M. Porter, for the deduction оf costs and attorney‘s fees and distributed to the Respondent-Wife, CONNIE SUE HORTON. This amount shall be paid upon execution and rendition of this Judgment.
Where the parties arе equally capable of securing competent counsel, neither shоuld be required to pay the attorney‘s fees for the other. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Peak v. Peak, 411 So. 2d 325 (Fla. 5th DCA 1982); Poppe v. Poppe, 412 So. 2d 38 (Fla. 3d DCA 1982); Wenz v. Collings, 417 So. 2d 318 (Fla. 5th DCA 1982).
The judgment is affirmed in аll respects except that portion which takes from the husband and gives tо the wife and her attorney $4,500.00. That portion is reversed.
AFFIRMED in part; REVERSED in part.
ORFINGER, C.J., concurs.
SHARP, J., dissents with opinion.
SHARP, Judge, dissenting.
I respectfully dissent in this case. The trial judge may have erred in labeling the award to the wife as a special equity, but that should not be a basis for our reversal, if it can be supported on another ground. Firestone v. Firestone, 263 So. 2d 223 (Fla. 1972). Here, I think this $4,500.00 award can be justified on the basis of an equitablе distribution of assets acquired by the parties through pooling their joint incomes and efforts. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).
The trial judge stated in explaining his decision that there was conflicting еvidence about whether or not the wife contributed her income to the husband‘s acquisition of his business assets: a $10,000.00 tug boat and a $1,500.00 outboard. The parties started living together and pooling their income in 1976, and their business properties were acquired during that time period. They married in 1980. The trial judge concluded it was equitable to treat their assets as “marital assets,” and I agree with him under the circumstances.
Further, there was no dispute but that the wife took out a $2,526.00 loan from a bank, and from these loan proceeds the husband used $1,200.00 to buy a pickup truck fоr himself. The balance was presumably spent to pay joint living debts and expenses. At the time of the dissolution, the wife owed $2,400.00 on this loan. At least the $1,200.00 would qualify as a special equity, in the Canakaris sense.