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Schecter v Schecter

Case No. 3D12-1714 (FL Dist. 3 Ct. App., Mar. 6, 2013)

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.”












 

 

Judge(s): Linda Ann Wells
Jurisdiction: Florida Court of Appeals, Third District
Trial Court Judge(s)
Scott Bernstein

 
Court of Appeals Judge(s)
Angel Cortinas
Thomas Logue
Linda Wells

 
Appellant Lawyer(s) Appellant Law Firm(s)
Maurice Kutner
Cynthia Greene Greene Smith & Associates

 
Appellee Lawyer(s) Appellee Law Firm(s)
Gerald Cope, Jr. Akerman Senterfitt
John Crabtree Crabtree & Associates
Jeffrey Pollack Fox Rothschild

 

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connection with the indian creek village residence . . . . held difference in the controlling effect of pre- and post- dissolution contractual terminate temporary support, temporary attorney’s fees and costs, for the so. 2d at 1157, n.2 (citing ch. 71-241, ch. 95-147, laws of fla., and section 61.09 12 “necessary that one spouse be completely unable to pay attorney’s fees for the schecter of insufficient funds for her own support, good cause arguably was actions is to ‘ensure that both parties to a dissolution case have similar access to c) the husband shall create an escrow account with the sum of left with only the proceeds from the $1.8 million marital home—denial of a fee cullen v. cullen, 884 so. 2d 304, 306 (fla. 2d dca 2004) (“it is not necessary that a little less than a week later, the parties’ marriage was dissolved in a announced in canakaris v. canakaris, 382 so. 2d 1197 (fla. 1980), that the purpose costs has yet to be determined. see cobo v. sierralta, 13 so. 3d 493, 500-01 (fla. 3d dca 2009) (“[t]he failure 6 ($1,000,00) dollars a week directly to the wife’s domestic help . . . ; lashkajani recognized that although belcher speaks of a husband’s duty of an appeal from a non-final order from the circuit court for miami-dade vick, 675 so. 2d 714, 718 (fla. 5th dca 1996) (“since the determination of fees 5 proceedings.”) (citations omitted); askegard v. askegard, 584 so. 2d 47, 49 (fla. paragraphs 4 and 5 were to remain in effect “so long as [the] matter is pending.” excluded by contract during this period of continuance of the legal relationship of required to diminish his or her share of a distribution, to receive a temporary fee 2d at 1156-57 (reconfirming a spouse’s obligation as “including the responsibility in this case, the parties made no attempt to contract away or to waive the see also rosen v. rosen, 696 so. 2d 697, 699 (fla. 1997) (reiterating the standard support and attorney’s fees for mrs. schecter. both agreements, or stipulations, her former husband leroy schecter’s previously agreed to and court ratified she was to receive pursuant to the prenuptial agreement was substantially less than prevailing party clauses in prenuptial agreements can be distinguished provide spousal support during the term of a marriage includes responsibility for the 3 according to the former husband, he already had paid the former wife some $2.5 3. the husband shall continue to maintain the fixed bills in on april 10, 2012, following a three week trial, the court below orally for the same reason the agreement cannot preclude the court in the discretion in terminating mr. schecter’s temporary support obligation. having (fla. 3d dca 2005) (confirming that the purpose of a fee award in dissolution home,” and (1) required mr. schecter to pay certain amounts to mrs. schecter; (2) and reasonableness of the remaining 15% to be determined after entry of a final this appeal confirms, this matter still is “pending” and mr. schecter’s belief that limit . . . ; ________________ limited award made, deprived cobo of any meaningful representation . . . see children. the existing general obligation of the husband to support is (emphasis added); accord craig v. craig, 26 so. 2d 881, 883 (fla. 1946); see 26 agreement itself. their purpose is to indemnify the party who relied on though it was entered by consent of the parties and pursuant to an agreement court’s authority to terminate a temporary support obligation: of the parties’ agreements, we conclude that here, as in kelly, the order terminating of a fee award in dissolution action is to ensure that both parties have ‘a similar the dissolution proceedings are included to enrich the parties entering expert testimony.”). here, the parties made a deal—that mr. schecter would pay whether the parties’ prenuptial agreement was valid and binding. that same month, fees in order to be awarded fees.” id. at 368. thus, in significant part, because the he left the marriage with a net worth exceeding $12,000,000 while the former wife and costs to the prevailing party in litigation regarding the validity and (emphasis added). the temporary support delineated in paragraph 1 specified no of the florida statutes). party’s financial position is so inferior to that of the other party,” it neither is thus, we cannot characterize the trial court’s decision as arbitrary, fanciful, or schiller & flexner llp, on or before july 29, 2010. and occupancy of the indian creek village residence until further order not final until disposition of timely filed motion for rehearing. wife even though the former wife had secured a $1.8 million distribution. the court appellant, support is an interim or interlocutory order, and, in the absence of intervening shall bear all fees and expenses charged by justice kogan in this concluded that “one party need not be completely without ability to pay attorney temporary alimony and attorney’s fees obligations. we find no abuse of discretion third district court of appeal in the trial court’s decision to terminate the payment of mrs. schecter’s temporary 3 before wells, c.j., and cortiÑas and logue, jj. were spread on the record in the form of agreed orders. the first agreement, we cannot, however, approve of the trial court’s decision to terminate mr. 6 sums already paid in temporary support and fees.1 having stipulated below to the court determining the award without the necessity of the court below abused its discretion in failing to award attorney’s fees to a former one hundred fifty thousand ($150,000.00) dollars. the parties. moreover, it has been pronounced that the award of attorney’s fees is in july 2002, after an eighteen year romantic relationship, the parties immediate return of automobile, and for other relief” claiming that continued (along with some funds to defray the costs thereof); and (3) obligated mr. schecter to temporary attorney’s fees and costs, unless, that is, mr. schecter can demonstrate “give the former wife an undeserved windfall” because the amount of alimony that 2 spouses from becoming dependent upon the welfare of others and is so significant d) the husband shall pay up to the sum of one thousand id. at 1159. (fla. 1972), which pronounced that “[f]or temporary support, suit money and demonstrated for termination of mr. schecter’s temporary support obligation. agreements providing for mrs. schecter to receive temporary attorney’s fees, the that consideration of the financial resources of both parties or some other temporary alimony obligation but reversed as to the termination of the obligation to court was bound by the pretrial stipulation.”); menendez v. menendez, 435 so. 2d if those fees were reasonable and that the court below would ultimately determine paid for mrs. schecter’s attorney’s fees. he argued these amounts were greatly in entry of a final judgment. indeed, the parties entered into not one but two appellate jurisdiction, it remains within the control of the court until the final shoshana candiotti schecter, 10 bills are questioned by the husband or remain unpaid in full within g. crabtree; fox rothschild and jeffrey m. pollack, (new york), for appellee. 287, 289 (fla. 5th dca 1983) (“[t]he former husband contends the award of an award of attorney’s fees in a marital case is the relative financial resources of the this case, we affirm the trial court’s decision to terminate mr. schecter’s temporary not limited in the type of representation he or she would receive because that discretion in deciding to terminate this obligation. ability to obtain competent legal counsel’); young v. young, 898 so. 2d 1076, 1077 the second addressed a 15% hold back. the parties agreed that 15% of the fees equitable imperative mandates termination of those payments. to date, mr. reckoning as to the amount to which mrs. schecter is entitled for her fees and arbitrary, fanciful, or unreasonable, in other words where no reasonable person giovanelli, 654 so. 2d 154, 155 (fla. 4th dca 1995) (“the principle criterion for her mother, where mrs. schecter’s interest was valued at $950,000. 4. as and for the wife’s temporary attorney’s fees, suit monies, and of her visa card, with a ten thousand ($10,000.00) dollar per month proper exercise of its jurisdiction and power, which exists entirely and enforceable. the court advised, however, that it would take “several months” ultimate determination as to the wife’s entitlement to attorney’s fees and costs and addressing the trial court’s decision on each of the obligations at issue in here, as in kelly, the wife with a net worth of approximately $2 million has with a net worth that “may be as high as $2 million.”4 dispute the facts contained in her former husband’s motion, but argued only the would take the view adopted by the trial court”). of law.” rosen v. rosen, 696 so. 2d 697, 700 (fla. 1997). two, there is a long- alimony does not arise from a business relation, but from the relation the agreement and constitute a disincentive to one who may frivolously of marriage. it is not founded upon contract, express or implied, but schecter’s entitlement to attorney’s fees or the reasonableness of any previously pay mrs. schecter’s temporary attorney’s fees in accordance with the parties’ prior proper to avoid an inequitable diminution of the fiscal sums granted . . . in those the florida statutes]”, rosen, 696 so. 2d at 699, which provides that a “court may net worth is tied up in a home owned with her mother. on these facts, and in light so long as this matter is pending, the wife shall submit her legal and terminated both mr. schecter’s temporary support and attorney’s fees obligations. 1 a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to former husband’s assets and income exceeded the former wife’s by a factor of 8— excess of the amounts he was required to pay under the pre-nuptial agreement, his promises allow a “windfall,” failed to provide a sufficient basis for june 23, 2011, and modified only paragraph 5 of the earlier stipulation and order bifurcated proceeding with the court below retaining jurisdiction to determine without support. 10. see lashkajani v. lashkajani, 911 so. 2d 1154, 1157 (fla. 2005) (reconfirming three thousand ($3,000.00) dollars to pay the wife’s travel expenses. award without expert testimony regarding the fees. he has waived this objection by awarded fees. a little less than three weeks later, mr. schecter filed a “motion to section 61.16, florida statutes . . . is to ensure that both parties will have a similar of the court. . . . . counsel and that neither has an unfair ability to obtain legal assistance because of appellee. remain in effect “until further order of the court”; and the fee provisions delineated in 8 payment of attorney’s fees and costs” . . . [and this obligation] cannot be waived or paid over ten times the amount previously agreed to and with no claim by mrs. schecter has made no such showing.6 ($1,000.00) dollars a week in the form of cash or check; ten (10) days from receipt of the same, the parties have agreed that 5 entered on july 29, 2010, was embodied in an order titled “agreed order on wife’s opinion filed march 6, 2013. judgment is entered. until then, the court may modify or set aside the order, even temporary attorney’s fees, the state remains an interested party and cannot be award to the former wife was reversed. enforceability of a prenuptial agreement are enforceable.” it did so observing: a)the husband shall ensure that the wife shall continue to have use fla. jur. 2d family law § 1093 (2012) (“an order granting temporary alimony or to award such fees to [ms. cobo], and certainly the failure to enforce the only agreements. alimony but do find the order terminating the payment of her temporary fees to be first for “every month . . . so long as this matter is pending,” (emphasis added), that it precludes the parties to a marriage from contracting away or waiving have agreed to the following: regarding attorney’s fees. that agreement obligated mr. schecter to pay only 85% only $260,000 from mr. schecter. thus, we conclude the trial court abused its a similar ability to obtain competent legal counsel,” and “assure that one party is d2728 (fla. 3d dca nov. 28, 2012) (citing canakaris v. canakaris, 382 so. 2d accounting bills for payment to the husband’s counsel for payment jurisdiction. audubon v. shufeldt, 181 u. s. 575, 21 s. ct. 735, 45 l. blanton, 654 so. 2d 1240, 1240 (fla. 2d dca 1995) (stating that the “obligation to lower tribunal no. 10-2779 the order on appeal therefore is affirmed as to the termination of the costs the parties have agreed that the husband shall pay the sum of analysis concluding that “prenuptial agreement provisions awarding attorney's fees dispute that this matter still is pending and no dispute that an “ultimate” for attorney’s fees and costs,” which cannot be contracted away); blanton v. . . prejudgment attorney’s fees and cannot be contracted away”). of mrs. schecter’s attorney’s fees upon being invoiced for same with the necessity appellant. announced that it had determined that the parties’ prenuptual agreement was valid 13 in lashkajani, the court did carve out something of a caveat to this longstanding judgment by either agreement of the parties or determination by a special master. no. 3d12-1714 justice gerald kogan shall be appointed as special magistrate with 4 between them.” (footnotes omitted) (emphasis added)). the second agreement (or stipulation) between the parties was executed on pay mrs. schecter’s attorney’s fees and costs during the pending litigation: paid mrs. schecter temporary support, including the expenses for exclusive use of million in temporary support and over $150,000 for her attorney’s fees. and costs related to a matter which the parties properly could stipulate, the trial matter, without prejudice. the other's financial advantage’”) (emphasis added).); see also lashkajani, 911 so. upon entering a final order in a proceeding.” compliance with the parties’ prior agreements (and agreed orders thereon) would the court below “adopted, ratified and approved in all respects” the parties’ below, mr. schecter argued that over a twenty-one month period he had the power to decide the appropriateness of said bills. the husband in kelly v. kelly, 925 so. 2d 364 (fla. 5th dca 2006), our sister court found that 2. the parties have agreed that the wife shall have the exclusive use 5. commencing on august 1, 2010, and for every month thereafter affirmed in part, reversed in part. trial court to require the other spouse to pay those fees,” nor should one spouse be also, while an agreement concerning the payment of temporary attorney’s the agreement. in contrast, prevailing party clauses protect the entitlement to temporary support, including temporary attorney’s fees, pending similar access to counsel and can thus fight the action on a nearly equal footing’); in response, the trial court this agreement also stated that it was “without prejudice for the court to make an maurice j. kutner; greene smith & associates and cynthia l. greene, for terminating that obligation. by the husband. in the event that any of wife’s legal and accounting former wife, shoshana schecter, appeals from a non-final order terminating wife, shoshana candiotti, (then with a worth of almost $1 million) agreed that in award. rosen, 696 so. 2d at 699 (quoting, in part, standard guar. ins. co. v. executed a prenuptial agreement in which the now former husband, leroy schecter, state of florida, january term, a.d. 2013 9 instance is not dependant upon the agreement of the parties. neither is obligations. this distinction was outlined in belcher v. belcher, 271 so. 2d 7, 9 continuing obligation to pay ms. schecter’s attorney’s fees. on the facts presented, we cannot conclude the trial court abused its schecter’s temporary attorney’s fees obligation. any determination regarding an the temporary fees obligation should be reversed. from time to time, after considering the financial resources of both parties, order proceedings, the parties entered into two agreements to provide for temporary support, that duty has now been extended by law to both spouses. lashkajani, 911 the right to temporary alimony or attorney's fees and costs incurred in ninety times that of mrs. schecter. moreover, a significant part of mrs. schecter’s ________________ court may, upon good cause shown, and without a showing of a substantial change independent of the agreement, from modifying or vacating its own . . ; county, scott bernstein, judge. attorney’s fees to his former wife is erroneous because the lower court made the motion for temporary relief and husband’s motion for exclusive use of marital b) the husband shall pay to the wife the sum of one thousand temporary support and attorney’s fees before a final judgment is entered. id. at 9- 7 wells, chief judge. (finding that “spousal support obligation during coverture includes liability . . . for . unreasonable. see vargas v. deutsche bank nat’l trust co., 37 fla. l. weekly the reasonableness and amount of said fees and costs.” purpose of a fee award in dissolution actions ‘is to ensure that both parties . . . have in february 2010, mr. schecter filed for a divorce and sought to enforce the the event their contemplated marriage ended in a divorce, shoshana would receive 61 are in equity and governed by basic rules of fairness as opposed to the strict rule 2 we start with two established principles. one, “proceedings under chapter free to award attorney’s fees.”).5 challenge it. mrs. schecter did not the total amount for fees and costs to which she would be entitled. there is no 4 granted mrs. schecter exclusive possession of the parties’ indian creek village home termination date; the exclusive use provisions delineated in paragraph 2 were to (then with a disclosed net worth approaching $160 million) and the now former from provisions regarding pre-dissolution support. provisions waiving contracted away”); veiga v. veiga, 563 so. 2d 1089, 1090 (fla. 5th dca 1990) before a written judgment would be entered. no determination was made as to mrs. quanstrom, 555 so. 2d 828, 835 (fla. 1990)); canakaris, 382 so. 2d at 1197; duss v. duss, 111 so. 382, 383-84 (fla. 1926), likewise confirmed a trial interlocutory order as may be justified by subsequent developments akerman senterfitt and gerald b. cope, jr.; crabtree & associates and john 11 made specific by judicial decree of the court of appropriate may adopt or reject it as seems consistent and proper to the court. prenuptial agreement. mrs. schecter sought to set it aside. during the course of the of circumstances, modify, vacate, or set aside a temporary support order before or require the other spouse to pay them. the purpose of an attorneys’ fee award under award of attorney’s fees in a dissolution proceeding “begins with section 61.16 [of in short, legally and equitably, mrs. schecter is entitled to receive argued the evidence showed mrs. schecter had substantial means of her own, aforementioned sum shall be paid, in full, to the law firm of boies, on the natural legal duty of the husband to support his wife and which the court by then had found to be valid and controlling. mr. schecter 1197, 1203 (fla. 1980), confirming that “discretion is abused when judicial action is ed. 1009. the power of the court to enter the decree in the first robbie v. robbie, 591 so. 2d 1006, 1009 (fla. 4th dca 1991) (confirming that the the other party of maintaining or defending any proceeding under [chapter 61]”. mrs. schecter’s temporary attorney’s fees “so long as [the] matter is pending.” as fees need not be deemed controlling, it also should not be ignored. see vick v. the court in any sense bound by the agreement of the parties, but temporary support should not be terminated until the final judgment was entered. the matrimonial home, of approximately $2.5 million excluding the amounts he this included a half interest in a waterfront home on miami beach owned with agreement to modify paragraph 5 of their earlier agreement to clarify mr. schecter’s one spouse be completely unable to pay attorneys’ fees for the circuit court to because the purpose of this statute is to “ensure that both parties will have the obligation of spousal pre-judgment support recognized in belcher.)2,3 1st dca 1991) (“to avoid an inequitable diminution of funds, the trial court was some ability to pay. however, mr. schecter’s net worth is almost $180 million, § 61.16, fla. stat. (2012). leroy schecter, support obligation. section 61.14(11)(a), of the florida statutes provides that “[a] ability to obtain competent legal counsel.”) (citation omitted); giovanelli v. vs. that she was to incur would be reviewed after judgment was entered to determine husband and wife.” this obligation recognizes the state’s interest in preventing during the pendency of the cause. 1. as and for temporary spousal support for the wife, the parties


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