Posted by Nydia Streets of Streets Law in Florida Child Custody
If parties agree to each pay their own attorneys’ fees in their marital settlement agreement, even for future litigation, is this provision enforceable? This issue arose in the case Helinski v. Helinski, 3D19-1273 (Fla. 3d DCA May 13, 2020) in which the former wife appealed an order denying her request for attorneys’ fees and costs.
The parties marital settlement agreement contained a provision which stated the parties agreed to pay their respective attorneys’ fees and costs “in any action for dissolution of marriage or similar action brought and in any future proceedings in any court.” Subsequently, the former husband moved to modify the parenting plan, asking for sole parental responsibility and 100% time-sharing. The former wife answered the petition denying the allegations and separately filed a motion for temporary attorneys’ fees and costs. The former husband eventually dismissed his petition, deciding not to go forward. The former wife then filed a motion for payment of costs incurred in defending against the former husband’s now dismissed petition. After a hearing on the former wife’s request for fees and costs, the court denied her motions, holding 1) she waived entitlement to fees under the parties’ marital settlement agreement and 2) even if she had not, she had not shown she had a need for her fees and costs to be paid. The former wife appealed.
The appellate court upheld the ruling, but first explained that it was error for the trial court to find the former wife had waived entitlement to fees in the marital settlement agreement. The court held “Stated differently, where the issue in litigation requires the trial court to determine what is in the best interests of the child, the trial court has the discretion to award attorneys' fees and costs pursuant to section 61.16, notwithstanding any agreement between the parties purporting to prospectively waive the right to seek an award of attorneys' fees and costs.” Since the court’s finding that the former wife did not have a need for fees was supported by competent substantial evidence, the appellate court affirmed the trial court’s determination on this matter.
However, moving to costs, the appellate court found it was error for the trial court to deny costs. Under Florida Rule of Family Law Procedure 12.420, when a party voluntarily dismisses a petition, the court must assess costs against the party dismissing the case. The appellate court held “Had the former wife's motion for costs been made solely in the context of a request for temporary fees and costs pursuant to section 61.16 (as her initial motion was), we might well have affirmed the trial court's order denying costs. [. . .] However, following the former husband's voluntary dismissal, the former wife supplemented her request, with the additional ground that rule 12.420(c) mandates taxable costs be assessed against the former husband and awarded to her. We agree that the supplemental request for costs, filed following that voluntary dismissal, and the application of rule 12.420(c), controls the result here.”
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