Varvel v. Varvel

36 Fla. Supp. 131
CourtCircuit Court of the 5th Judicial Circuit of Florida, Lake County
DecidedJanuary 7, 1972
DocketNo. 1319
StatusPublished

This text of 36 Fla. Supp. 131 (Varvel v. Varvel) is published on Counsel Stack Legal Research, covering Circuit Court of the 5th Judicial Circuit of Florida, Lake County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Varvel v. Varvel, 36 Fla. Supp. 131 (Fla. Super. Ct. 1972).

Opinion

W. TROY HALL, Jr., Circuit Judge.

This is a domestic relations proceeding. The cause currently before the court is a motion to tax costs, a motion for an award of suit money for the defendant wife, including attorney’s fees, incurred since the last order of this court dated October 8, 1971, and a motion and notice of hearing for contempt. The current motions came on to be heard on January 4, 1972.

The current proceedings are the most recent proceedings in a domestic relations case which has been in an almost constant state of turmoil for almost five years. The divorce in this case occurred in this court in 1967, when the husband was 24 years old and the wife was 20 years old. Their sole child was then 3 years old. Since the divorce decree, litigation in this case has been frequent and consumed large amounts of time of the court and respective counsel. Substantial costs have been incurred. The case has been extensively litigated in both Orange and Lake counties in Florida, and in Missouri. The parties have even had a physical contest in Canada, when the husband abducted the child from the street and carried him to Florida. The issue was custody and the prize was their child. Complicated questions of Florida law and the law of other states were raised. Almost all of the facts were disputed. By the order of this court, custody of the child was awarded to the mother. This issue of custody has now been quiet for more than a year. The disputes since then have concerned the wife’s suit money. The husband has shown a continuing resistance to the payment of the wife’s suit money. This is the essence of the issues now before this court.

In November, 1970, the wife filed and served a motion for attorney’s fees, costs and suit money for the period since December, 1969. Testimony of the parties was taken. The husband stipulated that he was able to pay a reasonable attorney’s fee, costs and suit money. The wife’s need for attorney’s fees, costs and suit money was abundantly shown by the fact that she is a student receiving welfare payments and food stamps. Detailed evidence was adduced and substantial amounts of testimony were taken concerning the value of a reasonable attorney’s fee for services rendered by the wife’s attorney. Subsequently, the court issued its order dated April 1, 1971, awarding a reasonable attorney’s fee of $2,500 and suit money in the amount of $76.41, for a total sum of $2,576.41, all of which was to be paid to the wife’s attorney, instanter. The husband filed and served his motion for rehearing on this order. [133]*133The wife then filed and served her motion for attorney’s fees and costs dated April 22, 1971, asking for costs for the expert witness fees for attorney Jefferson G. Ray for his services as an expert witness and his testimony concerning the value of a reasonable attorney’s fee for the wife’s attorney. He testified at the hearing on attorney’s fees heard in this cause on March 13, 1971, and gave evidence concerning attorney’s fees for the wife’s attorney in opposing the husband’s motion for rehearing, for arrangements in obtaining expert testimony and evidence in connection with Mr. Ray’s fees, and the actual hearing on both matters. There were also certain additional costs. Attorney Christopher Ford testified concerning the value of an expert witness fee for attorney Jefferson G. Ray and also concerning the reasonable value of an attorney’s fee for Francis E. Pierce, Jr., as attorney for the wife. By its order dated October 8, 1971, the court ordered the husband to pay a fee of $120 to the wife’s attorney and allowed an expert witness fee to attorney Jefferson G. Ray of $250, together with costs of $8.16, for a total of $378.16, all of which was to be paid to the wife’s attorney, instanter.

By a letter dated December 6, 1971, the husband advised the court, in essence, that he had applied to the wife’s attorney for deferred terms for these payments and that he had been refused. He complained of ill health, tight money and financial difficulty in business. The wife subsequently moved this court to find the husband in contempt for failure to obey the court’s orders of April 1, 1971, and October 8, 1971. Later the wife moved this court for the taxation of the costs of the hearing of January 4, 1972, attorney’s fees in connection with that hearing, and a judgment for all costs, fees and expenses.

The husband objects to the allowance of an attorney’s fee to the wife’s attorney on the matters in connection with his motion for rehearing and also the proceedings concerning Mr. Ray’s fee as an expert witness, and also in connection with the current enforcement proceedings. He objects to paying the wife’s attorney’s fees when the services concern the obtaining of an award of attorney’s fees, and the enforcement of their payment. If the fees must be paid, the husband is asking for liberal terms for the payment of the fees and suit money. The amounts of the fees and suit money requested have been stipulated by the husband to be reasonable and correct, whether they are legally allowable or not.

The wife’s theory of the current issue is that she is entitled to an award of all of her attorney’s fee and suit money in all proceedings in this cause, including the defense of the motion for rehearing and that she is also entitled to her costs in connection with the testimony of the expert witness, and attorney’s fees and suit money [134]*134in connection with the current enforcement proceedings. The wife states that the husband has wilfully failed or refused to pay the fees and suit money and should be adjudged in contempt of this court. She also asks for a judgment.

The only issue of fact in the case is whether the husband has wilfully failed or refused to pay the attorney’s fees and suit money. The first question of law in the case is whether such fees and costs are allowable. The second question of law is whether the husband wilfully failed or refused to pay them. The question of the husband’s wilful failure or refusal to pay is thus a mixed question of law and fact.

It is the conclusion of this court that the essential legal nature of the allowance sought is that of suit money to the wife to defray her cost for counsel fees and other expenses of suit. Novack v. Novack, 210 So.2d 215, 217; Smith v. Smith, 90 Fla. 824, 107 So. 257; Kolb v. Kolb, 103 Fla. 193, 137 So. 237; and Scanlon v. Scanlon (Fla. App. 1st), 154 So.2d 899. The awards sought by the current motion are part and parcel of the litigation, and cannot be separated from the previous litigation nor from the previous services and awards. The fees and costs allowable by the trial court are attributed to the wife because of her need for representation and suit money and her inability to pay for them. A divorce action is broad enough to adjudicate all claims arising between the parties. Novack v. Novack, supra. Accordingly, the wife is entitled to the award for attorney’s fees and her costs sought in the current and previous motions. It is within the discretion of the chancellor to determine the equities concerning the wife’s need for this suit money, and the husband’s ability to pay it. Novack v. Novack, supra. Our appellate courts have frequently dealt with similar matters and they have given us a broad base of law from which to proceed. The court has the power to enforce its orders, judgments and decrees by appropriate action. An award of suit money, including attorney’s fees in a divorce suit is controlled by the circumstances of the parties and the discretion of the chancellor. Coggan v. Coggan, 183 So.2d 839; Thompson v. Thompson, 223 So.2d 95.

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Related

Thompson v. Thompson
223 So. 2d 95 (District Court of Appeal of Florida, 1969)
Scanlon v. Scanlon
154 So. 2d 899 (District Court of Appeal of Florida, 1963)
Novack v. Novack
210 So. 2d 215 (Supreme Court of Florida, 1968)
Coggan v. Coggan
183 So. 2d 839 (District Court of Appeal of Florida, 1966)
Kolb v. Kolb
137 So. 237 (Supreme Court of Florida, 1931)
Smith v. Smith
107 So. 257 (Supreme Court of Florida, 1925)
Smith v. Smith
90 Fla. 824 (Supreme Court of Florida, 1925)
Kirkland v. Kirkland
253 So. 2d 728 (District Court of Appeal of Florida, 1971)

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Bluebook (online)
36 Fla. Supp. 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/varvel-v-varvel-flacirct5lak-1972.