Miller v. Miller

661 So. 2d 381, 1995 Fla. App. LEXIS 10683, 1995 WL 597430

Opinion

PER CURIAM.

We have for review an order requiring Benjamin K. Miller (husband) to pay $250 monthly toward his child and spousal support arrearages, denying Deborah Miller’s (wife) motion for contempt, and denying the wife’s request for an attorney’s fee.

The trial judge denied the wife’s request ■for an attorney’s fee based on the fact that the husband was not found in contempt. It was error to deny a fee for this reason. Foster v. Foster, 528 So.2d 1295, 1296 (Fla. 1st DCA 1988) (‘While a noneomplying spouse’s contempt may be taken into account in assessing attorney’s fees, the parties’ need and ability to pay still remain among the factors to be considered in establishing the predicate for such an award.”); see also Geronemus v. Geronemus, 599 So.2d 256 (Fla. 4th DCA 1992); Meloan v. Coverdale, 525 So.2d 935 (Fla. 3d DCA), review denied, 536 So.2d 243 (Fla.1988).

We therefore reverse the portion of the order below denying an attorney’s fee and remand for consistent proceedings. The order is affirmed in all other respects.

ERVIN, MICKLE and LAWRENCE, JJ., concur.