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Khan v. Khan

Florida Court of Appeal, Fourth District

January 11, 2012

Lisa KHAN, Appellant,
v.
Aslam KHAN, Appellee.

Page 100

Karen Coolman Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.

Nancy W. Gregoire and Joel L. Kirschbaum of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, for appellee.

WARNER, J.

The wife, Lisa Khan, appeals a non-final order striking a notice of hearing on her motion for an increase in temporary alimony and attorney's fees and costs. The trial court based its ruling on a Marital Settlement Agreement in which the parties had agreed to pay their own attorney's fees in any dissolution proceeding. As the order has the effect of denying temporary support and attorney's fees to the wife in the pending litigation, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). We reverse, because an agreement of the parties that waives or limits the right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is a violation of public policy. See Belcher v. Belcher, 271 So.2d 7 (Fla.1972).

The parties were married to each other in January 1991. In 1998, they separated, and marital dissolution proceedings were commenced. During those dissolution proceedings, the parties entered into a Marital Settlement Agreement (MSA). In 2000, however, the parties reconciled, and the proceeding was dismissed. The MSA was never approved by the court.

The agreement provided for alimony to the wife in the amount of $6,500 per month for 48 months and included, among its detailed terms: (1) an acknowledgment that both parties were represented by counsel and fully informed of their rights and obligations; (2) a provision that reconciliation would not invalidate the MSA; and (3) a provision that the MSA would not bar a subsequent action for dissolution. Several provisions addressed attorney's fees. These included:

Page 101

(d) Notwithstanding the foregoing, in the event either party must resort to a Court of competent jurisdiction for either enforcement or interpretation of this agreement, then and in that event, the prevailing party shall be entitled to recoup any and all costs incurred including reasonable attorney's fees.
....
Nothing contained in this Agreement shall be construed to bar or prevent either party from instituting an action or proceeding to terminate the marriage in any competent jurisdiction because of the past, present or future fault on the other's part or upon any ground now or hereafter existing. In the event of any such action, however, each party shall be solely responsible for their respective counsel fees, if any.

In 2009, nine years after the dismissal of the first dissolution action, the wife filed the present dissolution action. The wife's petition sought alimony, child support, equitable distribution, and attorney's fees and costs. The wife's petition did not mention the 1999 MSA. In the husband's answer and counter-petition for dissolution, the husband also did not mention the MSA, but denied that the wife should be awarded alimony or attorney's fees and costs.

The wife filed a motion for temporary alimony and attorney's fees. She requested temporary alimony of $6,000 per month and a temporary award of $15,000 in attorney's fees and costs. The wife also filed a projected litigation budget, estimating that she needed approximately $147,000 in fees and costs to litigate the case. The husband stipulated to an award of $15,000 in temporary fees and costs, as well as $4,914 per month in temporary alimony. The $4,914 monthly figure represented the $6,000 that the wife requested, less credit for health insurance and automobile expenses that the husband was required to pay. The trial court entered an order on the stipulation.

Subsequently, the wife filed a Motion for Increase in Temporary Alimony and Additional Attorney's Fees and Costs. After a change in counsel and an amended motion, the wife noticed the latter motion for hearing. Before the hearing on the wife's motion for an increase in temporary support and attorney's fees, the husband filed a Motion to Amend Answer and Counter-Petition. In the proposed Amended Answer, the husband for the first time raised the 1999 MSA as a defense to the wife's claims for equitable distribution, alimony, and attorney's fees and costs. Relying on the agreement, the husband also filed a Motion to Strike Notice of Hearing on Wife's Motion for Increase in Temporary Alimony and for Additional Attorney's Fees. In the husband's motion to strike, he argued that the alimony provision of the MSA was non-modifiable and that the MSA specifically stated that the parties agreed to pay for their own legal fees in connection with any divorce proceedings between them. Citing the prevailing party fee provision in the MSA, the husband also requested that his attorney's fees and costs in bringing the motion be taxed against the wife.

The trial court entered an agreed order granting the husband's motion to amend. It then entered an order granting the husband's motion to strike the hearing on additional temporary alimony and attorney's fees. As grounds for the relief, the court's order stated that the relief was granted " based exclusively upon the language contained in the parties' Marital Settlement Agreement executed on January 11, 1999: ...


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