HOWARD ENGELSEN, APPELLANT,
v.
CHERYL LANDERS, APPELLEE
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In this paternity action, the appellate court affirmed the trial court's award of temporary attorney's fees and costs to the mother, holding that despite a contractual fee provision, the trial court retained discretion to award fees based on the best interests of the child.
The trial court had discretion to award temporary attorney's fees and costs to the mother because contractual provisions dealing with child support are enforceable only to the extent they serve the best interests of the child, and parents cannot contract away a court's ability to ensure that a child's advocate can obtain competent counsel.
[1] A trial court has discretion to disregard an attorney's fee provision in a prior agreement between parents when awarding temporary attorney's fees and costs in a paternit…
[2] Parents cannot contractually deprive a party of the ability to retain competent counsel in proceedings concerning the best interests of their child.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a contract dealing with child support "will be given effect only to the extent that it is in the best interests of the child."”
Establishes the foundational principle that child support contracts are not absolute but are subject to the best interests of the child standard.
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Join FLexlaw to unlock all legal intelligenceThe mother and father entered into a support agreement for an out-of-wedlock child prior to its birth, which included an attorney's fee provision purp…
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GROSS, Judge.
We affirm the award of temporary attorney’s fees and costs to the mother in this paternity action.
Prior to the birth of the child, while they were living together, the mother and father entered into an agreement for support of an out-of-wedlock child which contained an attorney’s fee provision that purported to cover any subsequent proceedings involving the child.
After the birth of the child, the parties separated and the mother filed a paternity action. The father’s answer admitted paternity. By the time of the temporary relief hearing, the primary issues in the case were the primary physical custody of the child, the amount of child support, and attorney’s fees and costs.
Under Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986), modified on other grounds sub rum., Tietig v. Boggs, 602 So. 2d 1250 (Fla.1992), the trial court had the discretion, in considering the best interests of the child, to disregard the attorney’s fee provision in the parties’ agreement and award temporary fees and costs. In Bernstein, this court recognized that a contract dealing with child support “will be given effect only to the extent that it is in the best interests of the child.” Id. at 1272; see also Warrick v. Hender, 198 So. 2d 348, 351 (Fla. 4th DCA 1967). Bernstein was a case where the former wife sought an upward modification of child support from that awarded in a final judgment which incorporated the parties’ settlement agreement. In the modification proceeding, the trial judge did not award attorney’s fees to the former wife, finding that a provision in the settlement agreement absolutely precluded such an award. This court reversed, holding that the trial court had the discretion to award fees:
The rights of the minor child ordinarily have but one advocate, his or her custodial parent. If that advocate can be deprived by contract of the ability to retain competent counsel, then what the law says may not be done directly could be accomplished indirectly. Therefore, the rule that the parents cannot by contract adversely affect the child’s rights must have a spillover effect on a contractual provision that would deny counsel to a party in need. On the other hand, the provision of the agreement in question for recovery of attorney’s fees by the prevailing party has the salutory effect of eliminating harassment by reducing the number of frivolous matters being placed in litigation. It is therefore necessary to achieve a balance between these competing principles on a case-by-case basis, keeping in mind the rights of the minor children involved.
Id. at 1274.
The point of Bernstein is that if the parents cannot contract away a court’s ability to act in the best interests of their child, then they cannot contract away one party’s ability to obtain an advocate to see that the full story is developed in a child related proceeding. The trial court’s award of temporary fees and costs was within the parameters of Rosen v. Rosen, 696 So. 2d 697 (Fla.1997).
AFFIRMED.
GLICKSTEIN and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baumann v. Agudelo (Fla. 3d DCA 2024)…v. Berstein, 498 So. 2d 1270, 1272 (Fla. 4th DCA 1986) (“The law is clear that the parents may not contract away the rights of their child for support.” (quoting Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979))); Engelsen v. Landers, 699 So. 2d 1031, 1032 (Fla. 4th DCA 1997) (“The point of Bernstein is that if the parents cannot contract away a court's ability to act in the best interests of their child, then they cannot contract away one party's ability to obtain an advocate to see that the f…
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Ulbrich v. Coolidge, 935 So. 2d 607 (Fla. 4th DCA 2006)…contract away a court’s ability to [*609] act in the best interest of their child, then they cannot contract away one party’s ability to obtain an advocate to see that the full story is developed in a child related proceeding.” Engelsen v. Landers, 699 So. 2d 1031 (Fla. 4th DCA 1997). We find that the trial court erred in its application of Bernstein to the instant case. In the instant case, the parties did not contract away their right to obtain an advocate, nor was a heavier burden of proof being imposed o…
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Baumann v. Agudelo (Fla. 3d DCA 2024)…in v. Berstein, 498 So. 2d 1270, 1272 (Fla. 4th DCA 1986) (“The law is clear that the parents may not contract away the rights of their child for support.” (quoting Armour v. Allen, 377 So. 2d 798, 799-800 (Fla. 1st DCA 1979))); Engelsen v. Landers, 699 So. 2d 1031, 1032 (Fla. 4th DCA 1997) (“The point of Bernstein is that if the parents cannot contract away a court's ability to act in the best interests of their child, then they cannot contract away one party's ability to obtain an advocate to see that the fu…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)
- Joan Claire Hender Warrick (formerly known as Joan Claire Hender) v. Hender, 198 So. 2d 348 (Fla. 4th DCA 1967)
- Bernstein v. Bernstein, 498 So. 2d 1270 (Fla. 4th DCA 1986)
- Tietig v. Boggs, 602 So. 2d 1250 (Fla. 1992)