Awarding Fees In Non-Dissolution Lawsuits

In Battista v. Battista, 585 So. 2d 459 (Fla. 1st DCA 1991) the First District reversed an award of fees under section 61.16 in a separate action for declaratory judgment in which the former husband alleged that he was entitled to rent from his former wife. 585 So. 2d at 461. The Battista court premised the denial of fees on its determination that the "petition for declaratory relief was not founded upon the jurisdiction acquired by the court over the parties in the divorce proceedings" and that section 61.16 "does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final decree." Id. Similarly, in Robinson v. Swaim, 419 So. 2d 414, 415 (Fla. 2d DCA 1982), the Second District reversed the award of fees under section 61.16 in the former husband's separate action seeking to enjoin the former wife from filing a suit for alimony in North Carolina because this second action did not concern the enforcement or modification of the prior decree and the original judgment of dissolution did not provide for attorneys' fees. 419 So. 2d at 415. Cf. Fortner v. Fortner, 631 So. 2d 327, 328 (Fla. 2d DCA 1994) (award of fees was proper because even though bankruptcy proceeding was a separate action, it constituted an "enforcement" proceeding "under" chapter 61); Kass v. Kass, 560 So. 2d 293, 294 (Fla. 4th DCA 1990) (non-dissolution lawsuits were "so intertwined with the dissolution litigation" that they were "part and parcel of the domestic strife" and therefore the award of chapter 61 fees was not erroneous).