KIMBERLY FREEBORN v. ROBERT FREEBORN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

KIMBERLY J. FREEBORN, Appellant,

v.

ROBERT C. FREEBORN, Appellee.

No. 4D20-1124

[May 19, 2021]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Victoria L. Griffin, Judge; L.T. Case No. 2017DR000387.

Jennifer L. Delgado and Robin Bresky of Bresky Law, Boca Raton, for appellant.

Leanne L. Ohle of Ohle & Ohle, Stuart, for appellee.

DAMOORGIAN, J.

Kimberly J. Freeborn (“Former Wife”) appeals the final judgment dissolving her marriage to Robert C. Freeborn (“Former Husband”). Former Wife argues the trial court erred by: (1) denying her request for alimony; (2) failing to include Former Husband’s overtime income in calculating the child support amount; and (3) denying her request for attorney’s fees without making a finding as to need and ability to pay. We affirm on the first two issues without further comment. For the reasons discussed below, we reverse and remand on the third issue.

In denying Former Wife’s request for attorney’s fees, the court simply ordered that “each party shall be responsible for his or her attorney’s fees and costs incurred herein.” The court made no reference to the parties’ relative financial needs and abilities. This was error as a “trial court cannot deny a request for attorney’s fees under section 61.16 without making findings as to one party’s ability to pay an award of fees and the other party’s need for the payment of fees.” Gudur v. Gudur, 277 So. 3d 687, 693–94 (Fla. 2d DCA 2019); see also Wiesenthal v. Wiesenthal, 154 So. 3d 484, 486 (Fla. 4th DCA 2015) (reiterating that the absence of need and ability findings is generally fatal). “On remand, the trial court

shall reconsider [Former Wife’s] request for attorney’s fees and make findings regarding [Former Wife’s] need for and [Former Husband’s] ability to pay an award of attorney’s fees.” Gudur, 277 So. 3d at 694.

Affirmed in part, reversed in part, and remanded. WARNER and FORST, JJ., concur.

• • * * Not final until disposition of timely filed motion for rehearing.