Opinion
No. 4D11-2809
03-07-2012
JANIE NOBLE SIMON, Appellant, v. ERIC A. SIMON, Appellee.
Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellant. A. Matthew Miller of Boies, Schiller & Flexner, LLP, Hollywood, for appellee.
, J.
The wife appeals the circuit court's order on her motion for temporary support, fees, and costs during the pendency of her dissolution action against the husband. The wife argues that the court erred by limiting the amount of her temporary support, fees, and costs based upon the terms of the parties' amended prenuptial agreement.
We agree with the wife and reverse. We must continue to follow Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972), which holds that until the marriage is dissolved, support cannot be conclusively supplanted by "advance summary disposition by agreement." Id. at 11. On remand, the "need and ability to pay test" of section 61.16, Florida Statutes (2011), continues to apply. See Lord v. Lord, 993 So. 2d 562, 565 (Fla. 4th DCA 2008) ("In the temporary setting prior to dissolution, section 61.16's need and ability to pay test continues to apply.") (citation omitted).
Reversed and remanded. TAYLOR and LEVINE, JJ., concur.
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Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Barry Stone, Senior Judge; L.T. Case No. 502011DR002375XXXXSB.
Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellant.
A. Matthew Miller of Boies, Schiller & Flexner, LLP, Hollywood, for appellee.
Not final until disposition of timely filed motion for rehearing.