Opinion
No. 70-461.
November 10, 1970.
Appeal from the Circuit Court, Dade County, James Lawrence King, J.
Smathers Thompson, and Earl D. Waldin, Jr., Miami, for appellant.
Horton Schwartz, and Robert C. Lane, Miami, for appellee.
Before PEARSON, C.J., and BARKDULL and SWANN, JJ.
This interlocutory appeal is taken from an order entered after judgment which denied appellant-wife's petition for attorney's fees. In the previous final judgment the court had dismissed the appellant-wife's suit for divorce after trial. When the cause came on to be heard on the wife's application for attorney's fees the court found as follows:
"* * * The legal issue presented by the oral argument and written briefs for the respective parties is whether or not attorney fees and suit monies shall be awarded to a wife, of independent means, who files a groundless and ultimately unsuccessful suit for divorce against her husband."
Based on this finding the court entered its order denying any recovery against the appellee-husband but of its own motion directed the wife to pay the sum specified as a reasonable fee. We note that the direction to the wife is not in the form of a judgment, but we feel constrained to mention that since it is not based on a pleading or notice to the wife of such application, it is of no legal effect. Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); Cortina v. Cortina, Fla. 1957, 98 So.2d 334.
The finding of the trial judge constitutes a holding that the suit of the wife was not well-founded. In order to reverse a denial of attorney's fees, the burden is upon the appellant to demonstrate a clear abuse of discretion. McFarlin v. McFarlin, Fla. 1954, 75 So.2d 580.
Affirmed.