Posner v. Posner, 67-632

• Decision Date: 30 June 1970
• Docket Number: No. 67-632,67-632
• Citation: 237 So.2d 186
• Parties: Victor POSNER, Appellant, v. Sari POSNER, Appellee.
• Court: Florida District Court of Appeals

Page 186

237 So.2d 186

Victor POSNER, Appellant, v. Sari POSNER, Appellee.

No. 67-632.

District Court of Appeal of Florida, Third District.

June 30, 1970.

Frates, Fay, Floyd & Pearson, Miami, for appellant.

Sibley, Giblin, Levenson & Ward, Broad & Cassel and Lewis Horwitz, Miami Beach, for appellee.

Before CHARLES CARROLL, HENDRY and SWANN, JJ.

PER CURIAM.

This interlocutory appeal is by the defendant below from an order entered in the cause after the final judgment. Plaintiff sued her husband for alimony unconnected with divorce. The defendant husband counterclaimed for divorce. The final judgment, entered December 8, 1966, denied the wife's claim for separate maintenance and granted the husband a divorce.

The order which is the subject of this appeal, entered May 8, 1967, made three provisions. First, it ordered 'That the following allocations be made for the award of temporary alimony and child support, to-wit: $250.00 of the weekly payment for support of the plaintiff Sali Posner, and $300.00 for child support.' ¹ Second, it granted judgment against the defendant husband for $30,000, in favor of the wife's attorneys, as a fee for their services for the wife, and authorized issuance of execution thereon. Third was a judgment for the court costs, entered against the husband. We deferred ruling on this interlocutory appeal pending the completion of proceedings instituted for review of the final judgment. See Posner v. Posner, Fla.App.1968, 206 So.2d 416, and Posner v. Posner, Fla.1970, 233 So.2d 381.

Appellant earnestly contends that by the antenuptial agreement the wife waived attorney fees, and at most was entitled to be awarded attorney fees only for the services of her attorneys performed with reference to the matters of child custody and child support, which were minimal in proportion to the entire litigation in the trial court. We find that argument to be without merit. A reading of the pertinent portion of the antenuptial agreement (which was quoted in this court's opinion (206 So.2d 416)) reveals that the agreement did not contain an express waiver of attorney fees, and did not deal directly with the matter of attorney fees. In our opinion the wording of the agreement is not such as to show intent of the wife to waive her right to receive attorney fees for services of her attorneys in the divorce suit. See Annot. 3 A.L.R.3d 716, 741-747. Nor would such an agreement if effective to waive attorney fees in a divorce suit, affect her right to receive attorney fees for seeking separate maintenance, or in challenging validity of the agreement.

Secondly, the appellant argues that if the agreement did not operate to deprive the wife of the right to attorney fees, the allowance made in this case was excessive and represented an abuse of discretion. The fee is indeed larger than customarily awarded in cases of this type. However, it was within the range of the evidence presented relating thereto, and consistent with the number of hours of service of the wife's attorneys which they testified were expended. The appellant challenged the reasonableness or necessity for the wife's attorneys to have consumed such amount of time on the case. While that argument is not without weight, it...