Opinion
No. AG-416.
October 12, 1982.
Appeal from the Circuit Court, Okaloosa County, Jere Tolton, J.
Gillis E. Powell, Jr. of Powell, Powell Powell, Crestview, for appellant.
James W. Grimsley of Smith, Grimsley, Remington, Kessler Simpson, Fort Walton Beach, for appellee.
Appellant wife seeks reversal of a judgment granting a change of custody of a child from the mother to the father. We find no error and affirm.
The appellee husband seeks taxation of costs and allowance of attorney fees against appellant. The motion for costs should be served in the trial court in accordance with Florida Rule of Appellate Procedure 9.400(a).
Normally, when a motion for appellate attorney fees in a marriage dissolution action is received, there has been a previous determination by the trial court that an economic disparity existed between the parties and that the moving party was entitled to fees in the trial court. Predicated on this trial court determination, unless we deny the petition outright, we provisionally grant the award and remand for a determination of a reasonable fee and the portion of it, if any, that the non-moving party should be required to pay because of a continuing disparity in the parties' needs and ability to pay. See Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977). Here, however, so far as the record on appeal shows, there has been no determination of an economic disparity between the parties. We follow the Dresser procedure but modify it to provide for such a determination.
We AFFIRM the judgment and REMAND appellee's motion for allowance of attorney's fees to the trial court for determination of appellee's entitlement to fees and the amount, if any, to be paid by appellant.
LARRY G. SMITH and JOANOS, JJ., concur.