Opinion
Case No. 3D05-710.
Opinion filed September 20, 2006.
An Appeal from the Circuit Court for Miami-Dade County, Gerald D. Hubbart, Judge, Lower Tribunal No. 02-3832-FC-07.
Joseph C. Segor, for appellant.
Weiss Kahn and Owen E. Kahn, for appellee.
Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
Lietty Pubillones ("the wife") appeals from a final order denying her Motion for Award of Attorney's Fees, Suit Money and Costs. As we conclude that there is competent substantial evidence in the record which supports the trial court's ruling, we find no abuse of discretion, and, therefore, affirm. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) ("In reviewing a true 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 upon competent substantial evidence and, therefore, the trial court did not abuse its discretion); Mazzorana v. Mazzorana, 703 So. 2d 1187, 1189 (Fla. 3d DCA 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 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 the husband from non-marital funds. While in litigation, the husband continued to make the mortgage payments, paid the utilities, and provided both alimony and child support. When the marital home was sold, the husband, who made the initial down payment and all subsequent mortgage payments for four and a half years, received $185,000, and the wife, who had the benefit of the 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). However, in the instant case, the trial court concluded that the wife voluntarily limited her income. There is competent substantial evidence in the record to support this finding. The wife has at least one university degree; attended finishing school in Switzerland, Italy, and France; and is fluent in French, Italian, German, Portuguese, Spanish, and English. She has worked in her family's businesses. Her mother is the founder and director of the International Etiquette School of America, with offices in Coral Gables, Palm Beach, and Switzerland, and the wife is the co-director. Her father is the president of American International Freight Forwarders. The wife also owned and ran her own business and served with the U.S. State Department. While the wife claimed that she had not been employed outside of the marital home since the marriage because she was breastfeeding and unable to work, the husband testified that she was working and there is record evidence which supports the husband's claim. Additionally, the wife was receiving substantial monetary support from her family and there was no evidence presented whether these monies were loans or gifts. Furthermore, the husband, who is a pharmacist at Walgreen's, was paying the mortgage and utilities plus alimony and child support equaling over half of his yearly income. 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 a conclusion that the wife both voluntarily limited her income and failed to report her income, and that based upon the husband's monthly payments to the wife, there existed no great disparity between the parties' incomes.
Affirmed.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.