KEMPER v. KEMPER (2003)

ON MOTION FOR REVIEW

Max Kemper requests review of the trial court's order deferring award of appellate attorney's fees ¹ to Kelli R. Kemper for a period of twenty-four months.   We had remanded this case to the trial court in Kemper v. Kemper, 807 So.2d 711 (Fla. 5th DCA 2002) and had conditionally granted fees upon a finding by the trial court of need and commensurate ability to pay after appropriate consideration of the financial resources of both parties.

Upon remand, the trial court expressed its opinion that it could not adequately determine need nor ability to pay based upon the current situation of Mr. Kemper, and speculated that he may be able to pay in the future if he recovers damages from injuries received in an automobile accident.

The deferral is contrary to Duchesneau v. Duchesneau, 692 So.2d 205 (Fla. 5th DCA 1997) and Mishoe v. Mishoe, 591 So.2d 1100 (Fla. 1st DCA 1992) which require attorney's fee awards to be based upon the current relative financial positions of the parties, not at some unspecified future date.

We vacate the order deferring consideration of the award and remand for determination based upon the financial positions of the parties.

MOTION GRANTED;  ORDER VACATED;  REMANDED.

FOOTNOTES

1.   Fla. R.App. P. 9.400(c)

PER CURIAM.

PETERSON, GRIFFIN and PLEUS, JJ., concur.