Kolb v. Kolb

In this case Mr. Chief Justice Buford, Mr. Justice Writfield and Mr. Justice Terrell are of the opinion that the decree of the Circuit Court should be affirmed except as to the order in regard to attorney's fees hereinafter mentioned, while Mr. Justice Davis, Mr. Justice Brown and Mr. Justice Ellis are of the opinion that the cause should be reversed and remanded, all members of the Court concurring in the opinion that there was error, however, in the decree awarding attorney's fees to be paid to the solicitor for the defendant. The solicitor was not a party to the suit and, therefore, the award of attorney's fees should have been that the same be paid to the defendant or paid into the registry of the court for the use of the solicitor for the defendant. See Smith vs. Smith, 90 Fla. 824,107 So. 257.

When the members of the Supreme Court, sitting six members in a body, and after full consultation it appears that the members of the Court are permanently and equally divided in opinion as to whether the decree should be affirmed or reversed, and there is no prospect of an immediate change in the personnel of the Court, the decree should be affirmed.

It is, therefore, considered, ordered and adjudged under the authority of State ex rel. Hampton vs. McClung, 47 Fla. 224,37 So. 51, that the decree denying divorce should be affirmed and the case remanded with directions that the chancellor reform the decree in regard to attorney's fees as herein suggested.

Affirmed and remanded.

BUFORD, C.J., AND WHITFIELD, ELLIS, TERRELL, BROWN AND DAVIS, J.J., concur.