Foster v. Foster , 528 So. 2d 1295 ( 1988 )

528 So. 2d 1295 (1988)

Sharon H. FOSTER, Appellant,
v.
James L. FOSTER, Appellee.

No. 87-883.

District Court of Appeal of Florida, First District.

August 2, 1988.

Rhonda S. Martinec, of Daniel, Komarek & Martinec, Panama City, for appellant.

Richard D. Ogburn, Panama City, for appellee.

WENTWORTH, Judge.

Appellant seeks review of an order finding her to be in contempt of court and directing that she pay appellee's attorney's fee. The contempt adjudication was predicated upon appellant's failure to comply with a prior child custody order. We find appellants' assertions of error to be without merit except as to the attorney's fee award. Neither the evidence at the contempt hearing nor the appealed order addressed the parties' financial circumstances with regard to their relative need and ability to pay attorney's fees. While a noncomplying spouse's contempt may be taken into account in assessing attorney's fees, the parties' need and ability to pay still remain among the factors to be considered in establishing the predicate for such an award. See Warnhoff v. Warnhoff, 493 So. 2d 52 (Fla. 4th DCA 1986).

The contempt adjudication is affirmed. The attorney's fee award is reversed and the cause remanded.

ERVIN and BOOTH, JJ., concur.