Overbey v. Overbey

664 So. 2d 351 | Fla. Dist. Ct. App. | 1995

Lead Opinion

PER CURIAM.

Daniel Overbey appeals from the final order awarding his former wife attorney’s fees resulting from a modification proceeding filed by Overbey. We find that the trial court abused its discretion because the parties have a substantially equal ability to pay. See Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976) (where the parties to a dissolution proceeding are equally able to pay attorney’s fees, it is an abuse of the court’s discretion to require one spouse to pay the other’s attorney’s fees); Sizemore v. Sizemore, 487 So.2d 1080, 1081 (Fla. 5th DCA 1986) (stating that “[w]here the parties depart the marriage in relatively equal economic circumstances, it is error to award attorney’s fees to one party.”) (citations omitted). Accordingly, we reverse.

REVERSED.

GOSHORN and ANTOON, JJ., concur. DAUKSCH, J., dissents, with opinion.

dissenting.

I respectfully dissent.

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Dissenting Opinion

DAUKSCH, Judge,

Appellee was forced into court by appellant seeking modification of his divorce judgment. Appellant was unsuccessful and ap-pellee incurred attorney’s fees to protect her rights under the judgment. Although their economic situations are close to equal, appellant does have a greater ability to pay than does appellee. The judge did not abuse his discretion in ordering appellant to pay for appellee’s attorney under the facts of this case. I would affirm.