Khan v. Khan
2012 Fla. App. LEXIS 190
| Fla. Dist. Ct. App. | 2012Background
- Wife appeals a non-final order striking her hearing on a motion for increased temporary alimony and attorney’s fees and costs.
- Trial court relied on a 1999 Marital Settlement Agreement (MSA) that required each party to pay their own fees and allegedly limited alimony; the MSA was never court-approved.
- Parties separated in 1998, dissolution proceedings began, reconciled in 2000, and the MSA was not incorporated by order.
- In 2009, wife filed a new dissolution action seeking alimony, child support, property distribution, and attorney’s fees; the petition did not reference the MSA.
- During proceedings, husband stipulated to $15,000 temporary fees and $4,914 monthly temporary alimony; trial court entered an order on that stipulation.
- Before the hearing on wife’s increased temporary relief, husband moved to amend and to strike the hearing, arguing the MSA barred such relief; the court granted the strike and wife appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May temp alimony be waived in a pending dissolution? | Wife argues Belcher bars waivers of pendente lite support. | Husband contends MSA controls and waives temp support. | Strike reversed; temp support not conclusively waived by MSA. |
| May temporary attorney’s fees be waived or precluded by an MSA? | Wife asserts public policy disfavors waivers of pre-dissolution fees. | Husband relies on MSA prevailing-party/fee provisions. | Strike reversed; Belcher/Lashkajani policy prevents waivers of pre-dissolution fees. |
| Do Belcher and Lashkajani apply to this post-dissolution MSA context? | Belcher/Lashkajani support entitlement to temp relief regardless of agreement. | Kuchera treats MSAs after prior dissolution as potentially enforceable. | Belcher/Lashkajani control; MSA cannot bar pendente lite relief. |
| Can the trial court consider the MSA as a factor while determining temp relief? | MSA may be a factor but cannot preclude relief. | MSA provisions should preclude relief entirely. | Remand with guidance that MSA may be used as a factor; not dispositive. |
Key Cases Cited
- Belcher v. Belcher, 271 So.2d 7 (Fla. 1972) (public policy prevents waivers of pendente lite support and fees)
- Lashkajani v. Lashkajani, 911 So.2d 1154 (Fla. 2005) (premarital/postmarital fee waivers generally not extended to pre-dissolution support)
- Mulhern v. Mulhern, 446 So.2d 1124 (Fla. 4th DCA 1984) (Belcher governs temporary fees as well as support)
- Lord v. Lord, 993 So.2d 562 (Fla. 4th DCA 2008) (longstanding policy against enforcing waivers of pre-dissolution support)
- Kuchera v. Kuchera, 983 So.2d 776 (Fla. 4th DCA 2008) (MSA enforceability after prior dissolution; not controlling for temp relief here)
- Trowbridge v. Trowbridge, 674 So.2d 928 (Fla. 4th DCA 1996) (public policy applies to postnuptial and premarital fee waivers across contexts)