05-0710 PUBILLONES V. LYONS

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 05-0710 PUBILLONES V. LYONS

Case Date: 11/22/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2006

LIETTY PUBILLONES, Appellant, vs. JAMES LYONS, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 02-3832-FC-07 CASE NO. 3D05-710

Opinion filed November 22, 2006. An Appeal from the Circuit Court for Miami-Dade County, Gerald D. Hubbart, Judge. Joseph C. Segor, for appellant. Weiss & Kahn and Owen E. Kahn, for appellee.

Before RAMIREZ, ROTHENBERG, and LAGOA, JJ. ON MOTION FOR REHEARING

ROTHENBERG, Judge. We grant the appellant's motion for rehearing, withdraw our opinion filed on September 20, 2006, and substitute the

following opinion in its stead. appeals from a final order

Lietty Pubillones ("the wife") her Motion for Award of

denying

Attorney's Fees, Suit Money and Costs. there is competent the trial substantial court's evidence we

As we conclude that in the record no which of

supports

ruling,

find

abuse

discretion, and, therefore, affirm. 382 So. 2d 1197, 1203 (Fla.

See Canakaris v. Canakaris, reviewing a true

1980)("In

discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the `reasonableness' test to determine whether the trial judge

abused his discretion."); Rosenbloom v. Rosenbloom, 892 So. 2d 531, 535 (Fla. 4th DCA 2005)(finding that the attorney's fee award was based the v. upon competent court 703 did So. substantial not 2d abuse 1187, evidence and,

therefore, Mazzorana

trial

its

discretion); (Fla. 3d DCA

Mazzorana,

1189

1997)(applying the abuse of discretion standard regarding the award of attorney's fees in dissolution proceedings). Despite the brevity of the marriage (the parties married on October 11, 2001, separated eleven weeks later, and James Lyons ("the husband") filed for dissolution on February 11, 2002), the parties spent two years fighting over custody and visitation of their infant child and, in the process, incurred attorney's fees and costs totaling nearly $300,000. In light of the assets and

income of the parties, we agree with the trial court that the case was over-litigated. The only marital asset was the marital

home which was purchased with a down payment of $120,000 made by

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the husband from non-marital funds. husband continued to make the

While in litigation, the payments, paid the When

mortgage

utilities, and provided both alimony and child support.

the marital home was sold, the husband, who made the initial down payment and all subsequent mortgage payments for four and one-half years, received $185,000, and the wife, who had the benefit and use of the home, received $130,000. The award of attorney's fees and costs in family law cases is governed by section 61.16(1), Florida Statutes (2004), which makes the financial resources of the parties the primary

consideration.

It is true that where there is a disparity in

income, it is an abuse of discretion to require the party with the smaller income to bear the entire burden of his/her

attorney's fees.

See Mazzorana, 703 So. 2d at 1189 (holding

that in making its determination regarding attorney's fees, the trial court may take into account all relevant factors including whether one spouse has voluntarily limited or failed to disclose his/her income). In the instant case, the trial court concluded that the wife voluntarily limited her income. There is competent The

substantial evidence in the record to support this finding. wife has at least one university degree; attended

finishing

school in Europe; and is fluent in French, Italian, German, Portuguese, Spanish, and English. She has worked in businesses

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owned by her parents, including her father's freight forwarding company and her mother's etiquette school. In addition to her

employment in her parents' businesses, the wife also worked at the U.S. State Department in Washington, D.C., for a short

period of time. As to the parties' income, the record demonstrates that the husband, who is a pharmacist, earns approximately $100,000 per year. However, after the parties separated, he paid the

mortgage and utilities, plus alimony and child support, equaling over half of his yearly net income, and that after the marital home was sold, the husband has continued to pay substantial support to the wife. In addition, the record also demonstrates

that after the parties separated, not only has the wife received financial assistance from family members and/or friends in the form of loans, but so has the husband. Although the wife is

currently earning less than the husband, the court found that the wife was underemployed; has the potential to earn more

money, but has instead chosen to work at her mother's etiquette school; and that the husband should not bear the burden of

paying the wife's attorney's fees due to the wife's employment choices. Specifically, the trial court stated:

She also has, in this community I would think, occupational skills given her facility of languages. As I recall she was literate in more than two languages. Means that she certainly has the potential to make more money than what she is making now.

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Now, to be sure, I'm not saying that if an individual isn't out there working 80 hours a week and making $150,000 a year is some kind of a slackard, but on the other hand you make your life style choices, sometimes you have to live with it. Former wife wishes basically to work in her parents' business, which I think is a school of some sort for children, fine, if she wants to do it but sometimes there are burdens that go with that. If she wants to be underemployed, then fine, but I don't see necessarily where the former husband has to be responsible for payment of her attorney's fees, so consequently I'm going to deny both motions. Each side will bear their own costs and fees. Thus, we conclude that the trial court did not abuse its discretion in denying the wife's request for reimbursement of attorney's fees and costs as there is competent substantial

evidence to support the trial court's conclusion that the wife voluntarily limited her income, and that based upon the

husband's monthly payments to the wife, there existed no great disparity between the parties' incomes. Affirmed.

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