Schecter v. Schecter

• Decision Date: 06 March 2013
• Docket Number: No. 3D12–1714.,3D12–1714.
• Citation: 109 So.3d 833
• Parties: Shoshana Candiotti SCHECTER, Appellant, v. Leroy SCHECTER, Appellee.
• Court: Florida District Court of Appeals

109 So.3d 833

Shoshana Candiotti SCHECTER, Appellant,

v.Leroy SCHECTER, Appellee.

No. 3D12–1714.

District Court of Appeal of Florida,

Third District.

March 6, 2013.

Maurice J. Kutner; Greene Smith & Associates and Cynthia L. Greene, for appellant.

Akerman Senterfitt and Gerald B. Cope, Jr.; Crabtree & Associates and John G. Crabtree; Fox Rothschild and Jeffrey M. Pollack, (New York), for appellee.

Before WELLS, C.J., and CORTIÑAS and LOGUE, JJ.

WELLS, Chief Judge.

Former wife, Shoshana Schecter, appeals from a non-final order terminating her former husband Leroy Schecter's previously agreed to and court ratified temporary alimony and attorney's fees obligations. We find no abuse of discretion in the trial court's decision to terminate the payment of Mrs. Schecter's temporary alimony but do find the order terminating the payment of her temporary fees to be without support.

In July 2002, after an eighteen year romantic relationship, the parties executed a prenuptial agreement in which the now former husband, Leroy Schecter, (then with a disclosed net worth approaching $160 million) and the now former wife, Shoshana Candiotti, (then with a worth of almost $1 million) agreed that in the event their contemplated marriage ended in a divorce, Shoshana would receive only $260,000 from Mr. Schecter.

In February 2010, Mr. Schecter filed for a divorce and sought to enforce the prenuptial agreement. Mrs. Schecter sought to set it aside. During the course of the proceedings, the parties entered into two agreements to provide for temporary support and attorney's fees for Mrs. Schecter. Both agreements, or stipulations, were spread on the record in the form of agreed orders. The first agreement, entered on July 29, 2010, was embodied in an order titled “Agreed Order on Wife's Motion for Temporary Relief and Husband's Motion for Exclusive Use of Marital Home,” and (1) required Mr. Schecter to pay certain amounts to Mrs. Schecter; (2) granted Mrs. Schecter exclusive possession of the parties' Indian Creek Village home (along with some funds to defray the costs thereof); and (3) obligated Mr. Schecter to pay Mrs. Schecter's attorney's fees and costs during the pending litigation:

1. As and for temporary spousal support for the Wife, the parties have agreed to the following:

a)The Husband shall ensure that the Wife shall continue to have use of her Visa card, with a Ten Thousand ($10,000.00) Dollar per month limit ...;

b) The Husband shall pay to the Wife the sum of One Thousand ($1,000.00) Dollars a week in the form of cash or check;

c) The Husband shall create an escrow account with the sum of Three Thousand ($3,000.00) Dollars to pay the Wife's travel expenses ...;

d) The Husband shall pay up to the sum of One Thousand ($1,000,00) Dollars a week directly to the Wife's domestic help ...;

2. The parties have agreed that the Wife shall have the exclusive use and occupancy of the Indian Creek Village residence until further order of the Court.....

3. The Husband shall continue to maintain the fixed bills in connection with the Indian Creek Village residence....

4. As and for the Wife's temporary attorney's fees, suit monies, and costs the parties have agreed that the Husband shall pay the sum of One Hundred Fifty Thousand ($150,000.00) Dollars. The aforementioned sum shall be paid, in full, to the Law Firm of Boies, Schiller & Flexner LLP, on or before July 29, 2010.

5. Commencing on August 1, 2010, and for every month thereafter so long as this matter is pending, the Wife shall submit her legal and accounting bills for payment to the Husband's counsel for payment by the Husband. In the event that any of Wife's legal and accounting bills are questioned by the Husband or remain unpaid in full within ten (10) days from receipt of the same, the parties have agreed that Justice Gerald Kogan shall be appointed as Special Magistrate with the power to decide the appropriateness of said bills. The Husband shall bear all fees and expenses charged by Justice Kogan in this matter, without prejudice.

(Emphasis added). The temporary support delineated in paragraph 1 specified no termination date; the exclusive use provisions delineated in paragraph 2 were to remain in effect “until further order of the court”; and the fee provisions delineated in paragraphs 4 and 5 were to remain in effect “so long as [the] matter is pending.”

The second agreement (or stipulation) between the parties was executed on June 23, 2011, and modified only paragraph 5 of the earlier stipulation and order regarding attorney's fees. That agreement obligated Mr. Schecter to pay only 85% of Mrs. Schecter's attorney's fees upon being invoiced for same with the necessity and reasonableness of the remaining 15% to be determined after entry of a final judgment by either agreement of the parties or determination by a special master. This agreement also stated that it was “without prejudice for the Court to make an ultimate determination as to the Wife's entitlement to attorney's fees and costs and the reasonableness and amount of said fees and costs.”

A little less than a week later, the parties' marriage was dissolved in a bifurcated proceeding with the court below retaining jurisdiction to determine whether the parties' prenuptial agreement was valid and binding. That same month, the court below “adopted, ratified and approved in all respects” the parties' agreement to modify paragraph 5 of their earlier agreement to clarify Mr. Schecter's continuing obligation to pay Ms. Schecter's attorney's fees.

On April 10, 2012, following a three week trial, the court below orally announced that it had determined that the parties' prenuptial agreement was valid and enforceable. The court advised, however, that it would take “several months” before a written judgment would be entered. No determination was made as to Mrs. Schecter's entitlement to attorney's fees or the reasonableness of any previously awarded fees. A little less than three weeks later, Mr. Schecter filed a “Motion to Terminate Temporary Support, Temporary Attorney's Fees and Costs, for the Immediate Return of Automobile, and for Other Relief” claiming that continued compliance with the parties' prior agreements (and agreed orders thereon) would “give the Former Wife an undeserved windfall” because the amount of alimony that she was to receive pursuant to the prenuptial agreement was substantially less than sums already paid in temporary support and fees.¹ In response, the trial court terminated both Mr. Schecter's temporary support and attorney's fees obligations.

We start with two established principles. One, “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Two, there is a long-held difference in the controlling effect of pre- and post-dissolution contractual obligations. This distinction was outlined in Belcher v. Belcher, 271 So.2d 7, 9 (Fla.1972), which pronounced that “[f]or temporary support, suit money and temporary attorney's fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife.” This obligation recognizes the State's interest in preventing spouses from becoming dependent upon the welfare of others and is so significant that it precludes the parties to a marriage from contracting away or waiving temporary support and attorney's fees before a final judgment is entered. Id. at 9–10.See Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 (Fla.2005) (reconfirming the obligation of spousal pre-judgment support recognized in Belcher.) ²,³

Addressing the trial court's decision on each of the obligations at issue in this case, we affirm the trial court's decision to terminate Mr. Schecter's temporary support obligation. Section 61.14(11)(a), of the Florida Statutes provides that “[a] court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.”

Duss v. Duss, 92 Fla. 1081, 111 So. 382, 383–84 (1926), likewise confirmed a trial court's authority to terminate a temporary support obligation:

Alimony does not arise from a business relation, but from the relation of marriage. It is not founded upon contract, express or implied, but on the natural legal duty of the husband to support his wife and children. The existing general obligation of the husband to support is made specific by judicial decree of the court of appropriate jurisdiction. Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009. The power of the court to enter the decree in the first instance is not dependant upon the agreement of the parties. Neither is the court in any sense bound by the agreement of the parties, but may adopt or reject it as seems consistent and proper to the court. For the same reason the agreement cannot preclude the court in the proper exercise of its jurisdiction and power, which exists entirely independent of the agreement, from modifying or vacating its own interlocutoryorder as may be justified by subsequent developments during the pendency of the cause.

(Emphasis added); accord Craig v. Craig, 157 Fla. 710, 26 So.2d 881, 883 (1946); see26 Fla. Jur. 2d Family Law § 1093 (2012) (“An order granting temporary alimony or support is an interim or interlocutory order, and, in the absence of intervening appellate jurisdiction, it remains within the control of the court until the final judgment is entered. Until then, the court may modify or set aside the order, even though it was entered by consent of the parties and pursuant to an agreement between them.” (footnotes omitted) (emphasis added)).

Below, Mr. Schecter argued that over a twenty-one month period he had paid Mrs. Schecter temporary support, including the expenses for exclusive use of the...