M. FAYE HARRIS, APPELLANT,
v.
JAMES D. HARRIS, APPELLEE
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In this marriage dissolution case, the Florida First District Court of Appeal affirmed the trial court's decision to modify the alimony and child support provisions of a property settlement agreement, while ratifying the remainder of the agreement. The court held that trial courts have discretion to accept or reject portions of separation agreements and that trial courts may allocate attorney's fees within their discretion.
The trial court did not err because: (1) trial courts have discretion and are not bound by alimony and child support provisions in property settlement agreements and may accept or reject portions of such agreements; (2) the contractual attorney's fee provision was inoperable because the action was not instituted by the wife, and under Florida law the award of attorney's fees rests within the trial court's sound discretion.
[1] A trial court is not bound by alimony and child support provisions in a property settlement agreement and may accept or reject portions of such agreements.
[2] A trial court has discretion to award attorney's fees in a dissolution of marriage action.
Previewing 2 of 3 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“There is ample case authority to support the theory that the trial court in the exercise of its discretion, is not bound by the provisions of a written agreement of the parties relative to alimony, and is not bound to accept the agreement in its entirety, but the court may accept a portion of such agreement and reject a portion of it.”
Establishes that trial courts have discretion to modify or reject alimony provisions in property settlement agreements despite the parties' written agreement.
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Join FLexlaw to unlock all legal intelligenceAppellant and appellee married in 1962 and separated in 1970, entering into a property settlement agreement providing for $400 monthly alimony and $50…
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SPECTOR, Judge.
Appellant and appellee were married in 1962 and when they separated in 1970, they entered into a property settlement agreement. Pursuant to the agreement, appellant was to retain certain real and personal property and appellee was to pay appellant $400 per month alimony and $500 per month child support for the parties one minor child. In 1972, appellee instituted this present action for dissolution of marriage and appellant filed her answer in which she petitioned the court to ratify and adopt the property settlement agreement. Appel-lee then filed his motion to modify the agreement because of a change in financial circumstances. Appellee stated that at the time he executed the agreement, his salary was $27,219.00 per year ($20,000 of which was tax exempt because he was employed outside the United States). At the time of dissolution, appellee had been transferred back to the United States and was earning $18,720.00 per year. The lower court ratified the agreement except as to alimony and child support. As to the latter, the court ordered appellee to pay $300.00 per month rehabilitative alimony for 26 months and child support in the amount of $300.00 per month.
The first question presented for our consideration is whether the lower court erred in rejecting the alimony and child support provisions of the property settlement agreement entered into by appellant and appellee. This issue has been resolved adverse to appellant in several cases decided both before and after the new “no fault” divorce statute. In Spencer v. Spencer, 242 So. 2d 786 (Fla.App.1970), the Fourth District Court of Appeal stated:
“There is ample case authority to support the theory that the trial court in the exercise of its discretion, is not bound by the provisions of a written agreement of the parties relative to alimony, and is not bound to accept the agreement in its entirety, but the court may accept a portion of such agreement and reject a portion of it. Dawkins v. Dawkins, 172 So. 2d 633 (Fla.App.1965); Gelfo v. Gelfo, 198 So. 2d 353 (Fla.App.1967).”
Also, in Risteen v. Risteen, 280 So. 2d 488, 489 (Fla.App.1973), the court, relying on Spencer, stated that it is quite clear that the trial court is not bound by alimony provisions in separation agreements entered into by husband and wife.
The second issue presented by appellant was whether the lower court erred in requiring her to pay one-half of her own attorney’s fees. In support of her contention that it was error to require her to pay any portion of her attorney’s fees, appellant relies on a clause in the property settlement agreement which provides that in any divorce brought by the wife, the husband shall be responsible for all attorney’s fees. Inasmuch as this action was not instituted by the wife, this provision of the agreement is inoperable and under § 61.16, Florida Statutes, F.S.A., the award of attorney’s fees is within the sound discretion of the trial court. The appellant has failed to show any abuse of this discretion so as to require reversal.
Affirmed.
JOHNSON, J., and WIGGINTON, JOHN T., Associate Judge, concur.
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Huff v. Norilyn K. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990)…involve the issue raised here or otherwise indicate that the trial court’s modification of a support provision violated any other aspects of the agreements involved. See, e.g., Spencer v. Spencer, 242 So. 2d 786 (Fla. 4th DCA 1970); Hams v. Harris, 291 So. 2d 95 (Fla. 1st DCA 1974); Risteen v. Risteen, 280 So. 2d 488 (Fla. 3d DCA 1973). While we do not intend to restrict the trial court’s discretion to reject alimony or child support provisions contained in settlement agreements, in the interest of giving…
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Paris G. Singer v. Singer, 318 So. 2d 438 (Fla. 4th DCA 1975)…Beach, 240 So. 2d 329 (4th DCA Fla.1970); Spencer v. Spencer, 242 So. 2d 786 (4th DCA Fla.1970), cert. denied 248 So. 2d 169 (Fla.1971); Risteen v. Risteen, 280 So. 2d 488 (3rd DCA Fla.1973), cert. denied 283 So. 2d 563 (Fla.1973); Harris v. Harris, 291 So. 2d 95 (1st DCA Fla.1974). The cited cases are clearly in direct conflict with the Supreme Court decision in Posner v. Posner, 233 So. 2d 381 (Fla.1970), unless it can be said that they are distinguishable because they involved postnuptial agreements where…
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Hatfield v. Rhett Hatfield, 384 So. 2d 889 (Fla. 3d DCA 1980)…der review is affirmed upon a holding that: (a) the trial court on this record properly exercised its discretion in taking testimony on, and thereafter declining to approve a prior property settlement agreement between the parties, Harris v. Harris, 291 So. 2d 95 (Fla.1st DCA 1974); Risteen v. Risteen, 280 So. 2d 488 (Fla.3d DCA 1973); (b) the wife acquiesced in, and did not object to the court’s ruling on the taking of oral depositions1 and, accordingly did not properly preserve such ruling for appellate re…
Authorities Cited
- Dawkins v. Dawkins, 172 So. 2d 633 (Fla. 2d DCA 1965)
- Spencer v. Spencer, 242 So. 2d 786 (Fla. 4th DCA 1970)
- Gelfo v. Gelfo, 198 So. 2d 353 (Fla. 3d DCA 1967)
- Risteen v. Risteen, 280 So. 2d 488 (Fla. 3d DCA 1973)