Opinion
No. 88-1522.
February 17, 1989. Rehearing Denied March 28, 1989.
Appeal from the Circuit Court, Lee County, Robert T. Shafer, Jr., J.
Theodore L. Tripp, Jr. of Garvin Tripp, P.A., Fort Myers, for appellant.
Robert L. Donald and Ann Poe Mitchell of Pavese, Garner, Haverfield, Dalton, Harrison, and Jensen, Lehigh Acres, for appellee.
We reverse the trial court's order denying to the ex-wife any attorney's fees and costs incurred in defending against the exhusband's unsuccessful post-dissolution effort to obtain custody of their minor child.
The husband's income, which is shown to substantially exceed his expenses, is approximately four times that of the wife, which is not shown to exceed her expenses. Nor are the wife's assets shown for present purposes to be substantial or of a value greater than those of the husband. Even if in this kind of proceeding, as the husband argues and we need not decide but are inclined to doubt, additional income could be imputed to an ex-wife like appellant who works only part-time but has the responsibility of caring for a minor child, any reasonable such imputation in this case would not eliminate a substantial disparity between their incomes.
Contrary to the husband's argument, their previous agreement to share attorney's fees and costs incident to their 1981 dissolution proceeding is shown to have no relevance to their respective needs and abilities at the time of this post-dissolution proceeding. That, as the husband argues, the wife remarried, as did the husband, is not shown to be determinative.
Accordingly, we conclude that there was an abuse of discretion in the entry of the order now on appeal. See Hudgens v. Hudgens, 411 So.2d 354 (Fla. 2d DCA 1982).
Reversed and remanded for proceedings consistent herewith.
SCHOONOVER, A.C.J., and THREADGILL, J., concur.