VANESSA SANCHEZ, APPELLANT/CROSS-APPELLEE,
v.
CARLOS MARIO SANCHEZ, APPELLEE/CROSS-APPELLANT
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The court held that a provision in a marital settlement agreement requiring each party to bear their own attorney's fees should not control in a post-dissolution proceeding for modification based on changed circumstances.
Following a dissolution of marriage, the mother sought modification due to changed circumstances, including her move and the child's desire to live wi…
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PER CURIAM.
We reverse the main appeal and remand with direction to consider an award of attor ney’s fees to appellant. We affirm appellee’s cross-appeal.
The parties’ dissolution was resolved by agreement. However, over a year after the parties’ 1990 dissolution of marriage, the mother sought relief because of changed circumstances. While the parties’ marital settlement agreement had provided that the parties’ then seven-year-old son would live with his father and that the mother would receive no child support, their lives changed considerably after the dissolution. The mother moved to Georgia and the parties’ son desired to live with her. Prior to final hearing on the mother’s post-dissolution pleadings, she sought and obtained a temporary attorney’s fee. When the trial court later amended the final judgment by naming the mother as custodial parent, it reserved jurisdiction to award attorney’s fees and costs. Upon the mother’s filing her motion for same, the father then raised, for the first time, the following provision from the parties’ 1990 marital settlement agreement:
15. ATTORNEY’S FEES. Each party agrees to bear their own attorney’s fees and costs in connection with the negotiation and execution of this Agreement and all previous and subsequent proceedings.
The trial court denied the mother’s motion based on the above language.
Paragraph 15 of the parties’ agreement should not have controlled in this situation, and the trial court is directed, on remand, to proceed in accordance with Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986), modified on other grounds, Tietig v. Boggs, 602 So. 2d 1250 (Fla.1992).
GLICKSTEIN, FARMER, JJ., and HUBBART, PHILLIP A., Associate Judge, concur.
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Spano v. Spano, 698 So. 2d 324 (Fla. 4th DCA 1997)…there is a justification for an unequal distribution based on all relevant factors....”). . See fn. 2, above. . We distinguish the cases relied on by the former wife. Tucker v. Greenberg, 674 So. 2d 807 (Fla. 5th DCA 1996), and Sanchez v. Sanchez, 647 So. 2d 1046 (Fla. 4th DCA 1994), involved post judgment proceedings to modify child custody, while our case involves property issues only. Krueger v. Krueger, 689 So. 2d 1277 (Fla. 2nd DCA 1997), involved a modification of child support. To the extent that Dubr…
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Hadassa Helinski v. Helinski, 305 So. 3d 703 (Fla. 3d DCA 2020)…quired the trial court to determine the best interests of the child. See Bernstein, 498 So. 2d at 1272 (holding: “The best interests of the children are paramount in proceedings dealing with custody and child support.”) See also Sanchez v. Sanchez, 647 So. 2d 1046 (Fla. 4th DCA 1994) (reversing order denying motion for attorney’s fees and holding that, in a post-judgment proceeding to modify custody and child support, trial court had discretion under Bernstein to award attorney’s fees notwithstanding parties’…
Authorities Cited
- Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)
- Tietig v. Boggs, 602 So. 2d 1250 (Fla. 1992)