Tresser v. Tresser

ALTENBERND, Judge,

Concurring.

I concur in the court’s opinion. I wish to make two additional observations. First, the trial court made its decision when Rosen v. Rosen, 696 So.2d 697 (Fla.1997), was relatively new. Counsel did not rely upon Rosen when asking the trial court to make its award. The wife’s attorneys’ fees at the trial stage totaled approximately $100,000. The wife incurred a substantial portion of this amount because the husband decided, unsuccessfully, to challenge her intention to become the primary custodial parent for their three young .children.' On remand, if the trial court considers the “other relevant circumstances” described in Rosen, I am inclined to believe that these factors may support a higher percentage award to the wife. See also Taylor v. Taylor, 24 Fla. L. Weekly D1154, 734 So.2d 473 (Fla. 4th DCA 1999).

Second, Lowman v. Lowman, 724 So.2d 648 (Fla. 2d DCA 1999), involved a family with modest income and assets. When a trial court “consider[s] the financial resources of both parties,” as required by section 61.16, Florida Statutes (1995), to determine the issue of attorneys’ fees, this court has probably implied that a substantial disparity in income always mandates an award of fees. I do not believe that disparity is such a controlling factor. Clearly, a litigant with an income of $88,-000, not including child support, has financial resources that allow her to retain an attorney to represent her in these proceedings. This contrasts with the wife in Low-man, who may have been forced to remain unrepresented if the law did not allow some of her fees to be shifted to her *1198husband. If the attorneys’ fees in this case had not exceeded $25,000, I suggest the trial court would not have abused its discretion by denying the wife fees, given her high earning capacity. Given that her reasonable fees substantially exceeded this amount for reasons beyond her control, I agree that a consideration of the party’s respective financial resources, along with the other relevant circumstances, entitles her to an award in excess of fifty percent of her fees.