Kelly v. Kelly

Full title: PATRICIA (McGEACHY) KELLY, APPELLANT, v. RONALD REUBEN KELLY, APPELLEE

Court: District Court of Appeal of Florida, First District

Date published: Jul 15, 1986

491 So. 2d 330 (Fla. Dist. Ct. App. 1986)

Opinion

No. BJ-289.

July 15, 1986.

Appeal from the Circuit Court, Leon County, William L. Gary, J.

Anthony L. Bajoczky, and Patricia B. Fournier, of Barrett Bajoczky, Tallahassee, for appellant.

Keith J. Kinderman, Tallahassee, for appellee.

NIMMONS, Judge.

This is an appeal by the former wife from a final judgment of dissolution. She contests the trial court's division of marital property and the failure of the court to award her an attorney's fee. We affirm as to the first point and reverse as to the second.

Although evidence was conflicting on numerous issues regarding the property valuation and ownership, we are satisfied that the evidence is susceptible to the conclusion reached by the trial court that the property was equitably divided. Only if no reasonable person could consider the trial court's division equitable should we reverse. Marcoux v. Marcoux, 464 So.2d 542 (Fla. 1985).

However, we find that the trial court abused its discretion in failing to award the wife an attorney's fee. The wife has a substantially smaller income than the husband. The majority of her property award does not become liquid until the marital home is sold. Without liquid assets, she is in a substantially worse financial position in the short run than the husband. The trial court should have awarded her an attorney's fee. See Hirst v. Hirst, 452 So.2d 1083 (Fla. 4th DCA 1984); O'Steen v. O'Steen, 478 So.2d 489 (Fla. 1st DCA 1985). We therefore remand to the trial court to award the wife at least one-half of her attorney's fee, the final amount to be determined by the trial court which is authorized to conduct further proceedings for such purpose.

AFFIRMED in part, REVERSED in part and REMANDED with instructions.

MILLS and WENTWORTH, JJ., concur.