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Hadi B. Lashkajani v. Amy H. Lashkajani


I CALL THE NEXT CASE. GOOD MORNING. YOU MAY PROCEED, MR. TROHN.

GOOD MORNING. MY NAME IS ROBERT TROHN. I AM A LAWYER FROM LAKELAND, FLORIDA, AND I REPRESENT THE PETITIONER, HADI LASHKAJANI.

LET ME KNOW WHAT THE STARTING POINT HERE IS. IN ORDER TO HOLD IN YOUR FAVOR, WOULD WE HAVE TO RECEDE FROM BELCHER?

THAT IS THE WHOLE ISSUE. I DON'T SEE THAT THERE IS MUCH OF AN ARGUMENT ABOUT LAW TODAY. I THINK WE ALL AGREE THAT WE KNOW WHAT THE LAW IS TODAY. AND THE QUESTION IS, IS IT STILL GOOD LAW, AFTER THREE DECADES AND MORE?

AND THE LEGISLATURE, IN THE 32 YEARS SINCE BELCHER, COULD HAVE DETERMINED THAT THE PUBLIC POLICY OF THE STATE IS THAT WE ARE GOING TO HAVE FREE CONTRACTUAL FREEDOM FOR PRENUPTIAL OR POST NUPTIAL AGREEMENTS.

THAT CERTAINLY IS WITHIN THEIR POWER AS THEY COULD HAVE DONE BEFORE BLANTON, AND SAID THAT PRENUPTIAL AGREEMENTS WERE OKAY, BUT THAT THE WIFE WAS ENTITLED TO TEMPORARY FEES.

AND DESPITE JUDGE FARMER'S CONCURRENCE, IN A CASE, IS THERE ANYTHING IN CASTO, IN OUR OPINION, THAT WOULD CAST DOUBT ON THE CONTINUED VIABILITY OF BELCHER?

I THINK THE WHOLE CONCEPT OF CASTO.

WHAT CONCEPT OF CASTO? ANOTHER CASTO CONCEPT, TO ME, IS WHEN THE PARTIES ARE DEALING AT ARM'S LENGTH AND FAIRNESS AND JUSTICE SAY THAT THIS IS A REASONABLE BARGAIN, IN THE SENSE THAT THERE IS OPPRESSION THERE. ISN'T COERCION. THERE ISN'T ANYTHING, OTHER THAN A CONTRACT BETWEEN PARTIES WHO ARE ESSENTIAL PARTIES.

WHAT DID CASTO SAY ABOUT BELCHER, IF ANYTHING?

I DON'T THINK IT SAID ANYTHING. THAT IS MY RECOLLECTION.

SO WE CAN'T ASSUME THAT IT INTENDED TO OVERRULE BELCHER, IF IT DIDN'T EVEN MENTION BELCHER.

NO, SIR. NO, SIR.

AND YOUR ARGUMENT IS NOT THAT IT HAS BEEN OVERRULED. YOU ARE ASKING US TO OVERRULE T.

NO. I DON'T THINK, I MEAN, I WOULD SAY THAT THE CASES SAY, IN THE LIGHT OF CASTO, SOME OF THE DISTRICT COURTS HAVE SAID IN THE LIGHT OF CASTO, IS IT TIME TO RECONSIDER THIS.

IS THIS A STATUTORY INTERPRETATION CASE, OR A QUESTION OF WHETHER A PRENUPTIAL AGREEMENT THAT CONTAINS A PREVAILING PARTY FEE, SHOULD BE VOID AS AGAINST PUBLIC POLICY? DO YOU UNDERSTAND THE DISTINCTION, AS TO WHETHER, WHETHER 61.16 COMPELS THIS, OR WHETHER THIS IS, BELCHER CAME OUT OF WHAT THIS COURT PERCEIVED AS SORT OF A BENIGN POLICY OF PROTECTING WOMEN, UP UNTIL THE TIME THAT THEY WERE DIVORCED?

I DON'T THINK IT HAS ANYTHING TO DO WITH CHAPTER 61. I THINK THAT BELCHER IS AN ANACRONISM. WHEN I WALKED AROUND WAITING FOR YOU, I SAW JUSTICE TERRELL, AND I THOUGHT THAT JUSTICE DEACON, IN WRITING THIS OPINION, WAS TRYING TO ENTERTAIN US, AS JUSTICE TERRELL DID SOME TIME AGO, BUT WHEN HE TALKS ABOUT LORD BYRON AND HOW WOMEN ARE TO BE TREATED, I SAY LOOK AROUND. THREE DECADES HAVE CHANGED. WOMEN ARE DIFFERENT. THERE ARE TWO ON THIS COURT.

LET'S TALK ABOUT THAT ISSUE, WHICH IS THIS, SO THE POLICY IN THE STATE IS TO ENCOURAGE PRENUPTIAL AGREEMENTS OR TO AT LEAST SAY THEY ARE NOT VOID AGAINST PUBLIC POLICY. WHICH IS IT?

WELL, IN MY VIEW, IT IS TO ENCOURAGE IT.

DO WE REALLY WANT PEOPLE, BEFORE THEY EVEN GET MARRIED, I MEAN, THE IDEA IS THAT THEY SHOULD SORT OF FIGURE IT OUT FINANCIALLY, BEFORE THEY EVEN GET MARRIED?

I THINK THAT, AND WE ARE ASKING MY OPINION.

WE ARE ASKING YOUR OPINION AS NOT JUST YOURSELF, BUT AS TO WHAT THE --

CIRCUMSTANCES LIKE THIS, DO YOU TAKE A HUSBAND WHO HAS BEEN ONCE BITTEN, WHO SHORTLY BEFORE THIS MARRIAGE, WENT THROUGH A PROLONGED, CONTENTIOUS DIVORCE, AND THEN HE MEETS A WOMAN IN HER MIDDLE TWENTIES, WHO IS AN ACCOUNTANT, WHO HAS A BACHELOR'S DEGREE AND IS THREE MONTHS AFTER THE, HAS BEEN STUDYING FOR AN MBA, AND THREE MONTHS AFTERWARDS RECEIVES AN MBA, WHO HE MEETS BECAUSE SHE IS EMPLOYED BY AN ACCOUNTING FIRM THAT AUDITS HIS BOOKS. AND THAT SHE, IN THIS PROCESS, THROUGH AUDITING THEIR BOOKS, BECOMES AN EMPLOYEE OF THE COMPANY AND KNOWS EVERYTHING ABOUT IT, AND THEN THEY GO THROUGH A PROLONGED PROCESS OF NEGOTIATION WITH COMPETENT COUNSEL, AND THEN AS A CONDITION TO THE MARRIAGE, THE HUSBAND SAYS, I DON'T WANT TO TAKE ANOTHER CHANCE.

WOULD YOU AGREE, THEN, THAT IS IT, 61.16, IF WE AGREE THAT BELCHER NEED TOBD MODIFIED, WOULD, IN ALL CASES PREVENT THE AWARD OF ATTORNEYS FEES IN IN OTHER WORDS ARE YOU ARGUING FOR ANOTHER BRIGHT-LINE RULE, OR MIGHT THERE BE A CIRCUMSTANCE, WHERE THERE WAS PRETTY CLOSE TO BEING OVERREACHING, BUT THE PERSON DIDN'T HAVE, YOU KNOW, THEY DIDN'T, THEY WERE GIVEN EXTRA COUNSEL BUT THEY DIDN'T RETAIN IT ON THEIR OWN. THEY WEREN'T EDUCATED, THAT THERE MIGHT BE SITUATIONS WHERE THE COURT, FROM TIME TO TIME AFTER CONSIDERING FINANCIAL RESOURCES, MIGHT AWARD ATTORNEYS FEES UNDER 61.16?

IT IS A DIFFICULT QUESTION.

WE HAVE TO ANSWER THAT.

I APOLOGIZE FOR INTERRUPTING. CASTO ENCOURAGES CONTRACTS WHEN THEY ARE REASONABLE, AND CASTO GOES THROUGH, ABOUT AN EXPRESS CONTRACT, AND IF THERE IS NO OVERREACHING, OR IF THERE IS A GREAT DISPARITY BETWEEN PARTIES, THEN A BURDEN SHIFTS. IF THERE IS SOME SENSE OF UNFAIRNESS. I WOULD AGREE THAT THAT IS FAIR, BUT THE FINAL RESULT IN CASTO, TO REVERSE, BECAUSE THERE WAS OVERREACHING, DECEPTION, AND OPPRESSION IN THAT CASE, AND THERE IS ANOTHER DIFFERENCE IN CASTO. CASTO IS A CASE IN WHICH THERE WAS A POSTNUPTIAL CONTRACT. THIS IS A PRENUPTIAL CONTRACT.

HELP US A LITTLE BIT, IN TERMS OF, BECAUSE IT SEEMS LIKE PART OF WHAT YOU ARE TRYING TO DO IS MOVE US INTO THE 21st CENTURY, SO TO SPEAK.

EXACTLY.

THAT IS THAT OUR CULTURE HAS INDEED, CHANGED IN MANY POSITIVE WAYS, AND WE HAVE, FOR INSTANCE, THOUGH, AND WHEN WE TALK ABOUT BRIGHT LINES, WE HAVE ACCEPTED CHILDREN AND THEIR SUPPORT AND THEIR CUSTODY FROM ADJUSTING SOMETHING WHERE THEIR RIGHTS CAN BE CONTRACTED AWAY BY THE ADULTS INVOLVED IN THE THING HERE, SO MEMBERSHIP ME WITH, IF YOU HAD YOUR DRUTHERS, AND YOU WERE ABLE TO, REALLY, WRITE ON A CLEAN SLATE NOW, KNOWING WE PRETTY CLEARLY SORT OF ACCEPTED CHILDREN, OKAY, WHERE WOULD YOU ADDITIONALLY, IN TERMS OF DRAWING A LINE, WOULD YOU DRAW A LINE THAT SIMPLY SAID THAT AS LONG AS WE ARE TALKING ABOUT COMPETENT ADULTS, THAT WE WOULD ATTEND TO INDULGE YOUR PRESUMPTION, IN FAVOR OF THEIR CAPACITY TO ENTER INTO THESE CONTRACTS, AND WITH THE EXCEPTION OF VERY EGREGIOUS CIRCUMSTANCES, THAT WE SHOULD ADOPT A RULE THAT HONORS THE CONTRACT LAW ASPECT OF THIS RELATIONSHIP, MORE THAN THE EQUITABLE ASPECTS GENERALLY, OF FAMILY AND MARITAL LAW. THAT IS A VAGUE QUESTION, BUT --

I DO. I THINK THAT, UNDER REASONABLE CIRCUMSTANCES, PARTIES SHOULD BE ABLE TO CONTRACT TO THAT. I DON'T THINK THAT IT IS HELPFUL TO MARRIAGE, IN THE FIRST PLACE, I THINK A PRENUPTIAL AGREEMENT, FOR EXAMPLE IN THIS CASE, IS WISE. AND I WOULD CERTAINLY ADVISE A CLIENT OF MINE, WHO WAS REMARRIED IN THIS CIRCUMSTANCE, TO HAVE A PRENUPTIAL AGREEMENT. I THINK THAT THERE SHOULD AND PRESUMPTION IN FAVOR OF THE AGREEMENT, AND I WOULD START WITH THAT.

WOULD YOU INCLUDE IN THAT, AS FAR AS TEMPORARY SUPPORT OR ATTORNEYS FEES AND COSTS, BECAUSE THAT IS REALLY THE ISSUE BEFORE US, IS IT YOUR POSITION, LIMITED TO ATTORNEYS FEES AND COSTS RELATED TO THE LITIGATION OVER THE AGREEMENT ITSELF, ARE YOU GOING TO INCLUDE IN THAT, ATTORNEYS FEES AND COSTS FOR THE ENTIRE 61.16, AND SUPPORT?

NO, SIR, I WOULD NOT.

SO WHAT IS YOUR SITUATION?

AS A PRACTICAL PARTY, ISSUES OF SUPPORT, ISSUES OF VISITATION, ISSUES OF AFTER ACQUIRED PROPERTY, CERTAINLY SUPPLY THE WIFE OR THE SPOUSE WITH THE OPPORTUNITY, THE GATE TO THE COURTHOUSE. NOW, THE CONCEPT THAT YOU, IF YOU START OFF WITH A CONCEPT IF THERE IS A PRESUMPTION --

BUT EVERYBODY KEEPS TALKING ABOUT A PRESUMPTION. WHY DO WE HAVE TO DO THAT, IN ORDER TO ANSWER THIS QUESTION? I MEAN, IT SEEMS TO ME THAT THE QUESTION IS WHETHER THIS IS, CAN BE AN ENFORCEABLE CONTRACTUAL PROVISION IN A PRENUPTIAL AGREEMENT. I MEAN, I DON'T UNDERSTAND WHY WE WOULD GO AND START TALKING ABOUT PRESUMPTIONS.

WELL, THE ONLY REASON I WOULD, IS IF YOU WERE TALKING ABOUT A CASTO TYPE SITUATION, IN WHICH YOU DEVELOP SOME SEMBLANCE OF IMPRESSION, OF COERCION.

SEE, MY PROBLEM WITH THAT IS, IF WE ARE GOING TO GO DOWN THIS ROAD, IT SEEMS TO ME THAT THE ROAD HAS TO BE ON THE BASIS THAT THAT PRENUPTIAL AGREEMENTS ARE VALID AND ENFORCEABLE UNDER FLORIDA LAW, AND THAT THIS IS A PROVISION THAT CAN BE IN A PRENUPTIAL AGREEMENT.

THAT IS CERTAINLY THE LOGICAL CONCLUSION, AND I THINK APPROPRIATE. I WOULD LIKE TO POINT OUT ONE THING.

THAT IS AN IMPORTANT THING, BECAUSE I THINK IN TERMS OF TRYING TO GO WHEREVER WE ALL MIGHT BE GOING, THAT JUST LIKE, AND THIS IS GOING TO BE THE QUESTION, YOU KNOW, YOU SAY THERE COULD BE DIFFERENCE BETWEEN A PREUP IN AND POST UP IN. WE CERTAINLY RECOGNIZE THAT, WHEN THERE IS A SETTLEMENT AGREEMENT REACHED, AND THEN THERE IS AN ATTORNEY THAT THERE IS AN AGREEMENT, ALSO, ABOUT ATTORNEYS FEES, THAT THAT WILL TRUMP 61.16, IN POST-JUDGMENT LITIGATION, UNLESS IT IS, THE SETTLEMENT AGREEMENT IS SET ASIDE, SO, AND THIS IS MORE AFTER FRIENDLY QUESTION. I AM NOT SURE I WOULD SEE WHY THERE SHOULD BE ANY DIFFERENCE, IF YOU HAVE GOT CONTRACTING ADULTS AS TO WHY THESE JUST WOULDN'T BE ENFORCEABLE, IF THE ACTUAL AGREEMENT IS ENFORCEABLE. SO I MEAN, IT IS, NATURALLY IT IS A SIMPLE ANSWER, WHICH IS THAT THERE SHOULD BE A BRIGHT-LINE RULE, BECAUSE WE HAVE ALREADY RECOGNIZED IN CASTO, THAT THESE AGREEMENTS, YOU KNOW, WHETHER THEY ARE FAVORED OR NOT, THEY ARE NOT VOID AGAINST PUBLIC POLICY.

CAN I POINT OUT SOMETHING? YOUR PRESS RELEASE, I AM SURE NONE OF YOU PREPARED IT, SAID THE WIFE FILED FOR DISSOLUTION, WHICH SHE DID, AND TO ENFORCE THE PRENUPTIAL AGREEMENT. SHE DID NOT.

YOU MEAN IN THE SUMMARY TO THE PUBLIC ABOUT WHAT THIS CASE IS ALL ABOUT. SHE DISAVOWED THE PRENUPTIAL AGREEMENT, AND IT HAS BEEN AFFIRMED --

I CAN ASSURE YOU THAT THAT IS NOT A DOCUMENT THAT --

I JUST WANTED TO POINT THAT OUT, IF THERE WAS ANY MISCONCEPTION.

CAN WE PROBE THE EDGES OF WHERE THESE KINDS OF THOUGHTS, AND I WOULD INVITE YOUR OPPOSITION, AS WELL, TO PROBE THESE EDGES AS TO THE PRACTICAL ASPECTS, IF WE ARE GOING TO TALK IN TERMS OF CASTO, AND THAT THERE IS ROOM TO GO INTO THE OLD LAW SCHOOL ANALYSIS WHETHER A PEPPERCORN IS ADEQUATE CONSIDERATION, AND WE ARE GOING TO SOMEWHERE LEAVE THE LAW OPEN IN THIS AREA, FOR THESE THINGS TO BE CONTESTED. IS THERE A PRACTICAL IMPACT BY ALTERATION OF THE RULE, THAT FOLKS WILL NOT BE ABLE TO OBTAIN COUNSEL WITH THIS UNCERTAINTY, AND THAT KIND OF THING? IS THERE A PRACTICAL IMPACT THAT WE NEED TO LOOK AT, IF WE ARE GOING TO DO A MIDGROUND? CERTAINLY WE COULD SAY THE CONTRACT IS A CONTRACT IS A CONTRACT. AND WE CAN UNDERSTAND THAT, BUT IF YOU SAY IT IS A CONTRACT BUT, THEN YOU GET INTO GETTING COUNSEL, AND YOU GET INTO ALL OF THESE OTHER SIDE ISSUES, SO WHAT IS THE PRACTICAL IMPACT OF A BRIGHT-LINE RULE, OF MAINTAINING SOMEWHAT OF A CASTO RULE, BUT CAN IT BE ENFORCEABLE? WOULD YOU HELP US SOME THERE.

I AM NOT, NUMBER ONE, SOMEBODY WHO HANDLES DISSOLUTION CASES. CERTAINLY AT THE TRIAL LEVEL, BUT I CAN TELL YOU THAT IT WILL BE 50 YEARS OF PRACTICE THIS YEAR IN JANUARY, THAT RICH PEOPLE DON'T HAVE TROUBLE FINDING LAWYERS. RICH SPOUSES. THE ISSUES OF THE COLLATERAL ISSUES, ARE CERTAINLY THERE, OF SUPPORT, OF VISITATION, OF PROPERTY RIGHTS. THEY ARE ALL THERE, AND THEY GET YOU IN THE DOOR. I DON'T KNOW A PRACTICAL REASON AGAINST IT. I KNOW THAT, FROM A PRACTICAL STANDPOINT, BLANTON SAYS SUE, SUE, SUE! SEND FIVE, IN THIS CASE, FIVE LAW FIRMS FOR THE WIFE, $300,000 WORTH OF FEES, TO A DATE IN MARCH A COUPLE OF YEARS AGO, AND --

THIS IS ALL THAT, IS THE AMOUNT OF FEES THAT WERE INCURRED OVER THE, TRYING TO SET ASIDE THE AGREEMENT?

THROUGH MARCH, THE ORDER AWARDS TO MARCH 7, 2001 AND DOESN'T CONSIDER FEES AFTER THAT, BUT THIS IS JUST ON THE PRENUPTIAL, FIVE DIFFERENT LAW FIRMS FOR THE WIFE, $292,000. THE JUDGE SAYS THE CASE IS OVER LITIGATED, BUT THE JUDGE IS A CIRCUIT JUDGE, AND MAYBE POLK COUNTY IS DIFFERENT THAN OTHERS, BUT WHEN YOU HAVE LAWYERS LIKE CLINT CURTIS, JOHN FROST AND ROBIN GIBSON, WHO ARE LITIGATING IT WITH THE PEOPLE WHO ARE WORKING FOR HIM, IT IS HARD FOR A CIRCUIT JUDGE TO SAY THIS MAY BE OVER LITIGATED BUT I AM NOT GOING TO PAY YOU. SO IT IS EASIER TO SAY THAT BLANTON SAYS YOU CAN LITIGATE IT, YOU CAN LITIGATE IT, YOU CAN LITIGATE IT, AND IT MIGHT BE OVER LITIGATED, BUT --

YOU SAY BLANTON. YOU MEAN?

BLANTON.

IS BLANTON DIFFERENT FROM BELCHER?

BELCHER. I GET THE NAMES CONFUSED, AND I AM GETTING OLDER, TOO. HA HA. SO, BUT BLANTON DOES SAY THE SAME THING BELCHER DOES SAY.

DID THIS, IS THIS A RULE, AND YOU ARE IN YOUR REBUTTAL, AND, BUT I DO HAVE THIS QUESTION, DOES THE RULE OF BELCHER, ALSO, INCLUDE ALIMONY, UP UNTIL THE TIME OF THE DISSOLUTION? OR IS THAT A DIFFERENT ISSUE? IN OTHER WORDS --

IT APPEARS TO.

SO ARE YOU SAYING THAT, WAS SHE PAID ALIMONY UP UNTIL THE TIME OF THE --

I DON'T KNOW, AND IT ISN'T REFLECTED IN THE RECORD. I KNOW THIS, THAT SUIT WAS FILED IN DECEMBER, JANUARY OF 2000. THE ORDER UPHOLDING THE PRENUPTIAL AGREEMENT, WAS IN AUGUST OF 2000. THE FINAL JUDGMENT WAS IN DECEMBER OF 2000. THEN THERE WAS SOME AMENDMENT TO THE FINAL JUDGMENT IN MARCH OR MAY OF THE NEXT YEAR, AND THEN WE FINALLY GET AN ORDER, A NONPRO TUNC, BACK TO MARCH OF 2001, SO THERE IS A LOT OF TIME FOR LITIGATION FOR SOMETHING THAT SHOULD BE RESOLVED QUICKLY.

DID THE HUSBAND WAIVE HIS RIGHTS TO ATTORNEYS FEES UNDER THE AGREEMENT?

UNDER THE AGREEMENT, HE HAS A RIGHT TO HIS ATTORNEYS FEES. THE JUDGE AWARDED HIM CONTRACTUAL FEES OF SOMETHING LIKE $64,000. THE --

IT THE PREVAILING PARTY.

YES, SIR, THE DCA REVERSED THAT, AND I HAVE TO TELL YOU ON ORAL ARGUMENT, IT WAS VERY HARD FOR ME TO TELL THE DCA THAT IT WAS CONSISTENT TO GIVE, ON ONE HAND, AND TAKE AWAY ON THE OTHER.

JUST AS A FOLLOW-UP TO JUSTICE PARIENTE'S QUESTION, ABOUT WHETHER OR NOT BELCHER INCLUDES SUPPORT AND FEES DURING THE TIME OF THE MARRIAGE, UP TO, BEFORE THE ACTUAL ADJUDICATION OF DIVORCE, BECAUSE IT SEEMS TO ME THAT WOULD BE IMPORTANT IN THIS SITUATION, BECAUSE THERE, ISN'T THERE ANOTHER CLAUSE IN THE PRENUPTIAL AGREEMENT, THAT TALKS ABOUT, NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT, THAT THIS IS NOT, ALLEVIATES MY OBLIGATION OF SUPPORT DURING THE, OF AMY DURING MARRIAGE.

THAT'S RIGHT.

AND SO ISN'T IT IMPORTANT WHETHER OR NOT BELCHER INCLUDES SUPPORT UNTIL THE TIME OF THE ACTUAL DISSOLUTION, AS WELL AS ATTORNEYS FEES, UNTIL THE TIME OF THE DISSOLUTION?

YES. WELL, IN THIS PARTICULAR CASE, HE HAS AN OBLIGATION TO PAY UNDER, UNDER THE PRENUPTIAL AGREEMENT, SO I WOULD ASSUME THAT IT WOULD BE SOME PROPORTION OF THAT, BUT I DON'T THINK THAT BELCHER COVERS IT. AND I THINK THAT, I DON'T KNOW WHAT THE RECORD REFLECTS IN THIS CASE.

SO WOULD IT BE DIFFERENT, IF HE WASN'T PAYING, WELL, I GUESS ESSENTIALLY WOULD HAVE PREVAILED ON THAT, IF HE DIDN'T PAY THE ALIMONY, UP UNTIL THE TIME OF THE MARRIAGE TERMINATED, AND HE HAD TO LITIGATE THAT, THEN SHE COULD HAVE GOTTEN FEES UNDER THE AGREEMENT.

OH, YES. THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH. WELL GIVE YOU A LITTLE TIME FOR REBUTTAL, IF YOU WANT IT.

EXCUSE ME. I WAS GOING TO GET UP AND SAY I DIDN'T THINK I WOULD TAKE MY WHOLE TIME.

LITTLE DID YOU KNOW THAT WE HAD QUESTIONS.

GOOD MORNING, RAY RAFOOL, AND I REPRESENT THE FORMER WIFE.

ARE YOU ADVOCATING FOR THE CONTINUATION OF THE BRIGHT-LINE RULE OF BELCHER, THAT, LET'S ASSUME THAT THE FEE ENDED UP TO BE $1 MILLION TO AN HEIRESS, AND THEY ARE BOTH WEALTHY COMING IN, AND WE ARE JUST GOING TO AUTOMATICALLY LOOK TO SAY 61.16, IF SHE HAD MORE NEED THAN HE DID, THAT SHE COULD GET SNEEZE.

I AM TRYING TO FOLLOW YOU, JUDGE.

WHAT I AM ASKING YOU IS THAT, 61.16, NO MATTER WHAT, YOU COULD GO UNDER 61.16 TO GET FEES.

YES, YOUR HONOR, AND I WOULD LIKE TO ADDRESS AN INITIAL QUESTION THAT YOU HAD THAT I BELIEVE IS VERY IMPORTANT. YOU SAID ARE WE INTERPRETING OR ARE WE OVERRULEING LAW, AND YOU ARE ACTUALLY GOING TO OVERRULE TWO LAWS AND ADD TO LEGISLATION, AND I PRESENT THAT TO YOU IN DIFFERENT REGARDS. NUMBER ONE IS YOU HAVE THE BELCHER AS PEBLINGTS, AND CASTO DOES NOT TALK ABOUT BELCHER. THEY ARE VERY DIFFERENT AND I WILL TALK ABOUT THAT. THE OTHER DIFFERENCE IS THAT THE LAW, UNDER BELCHER, AND IT ALSO FOLLOWS, AND I HAVE SUBSTANTIAL LAW THAT DEALS WITH THAT, IS THAT BELCHER, PAGE 9 IS THAT THE CONTRACTS ARE MADE, THE LEGAL CONTEMPLATION OF THE THEN-EXISTING LAW, AND WHY THAT IS SO VERY IMPORTANT HERE, IS BECAUSE, FROM 19, 1845, ESSENTIALLY, 1972, 1989, TO TODAY, PEOPLE HAVE DONE PRENUPTIALS AND POST NUPTIALS, BASED ON THE THEN-EXISTING LAW.

BUT HAVEN'T WE SEEN, REALLY, OUR CULTURE AND OUR LAW CHANGE? THAT IS WOMEN DIDN'T EVEN GET THE RIGHT TO VOTE UNTIL AFTER WORLD WAR I, AND CERTAINLY IT WAS TRULY NOT UNTIL THE CIVIL RIGHTS NO. IN THIS COUNTRY, THAT THERE WAS SOME PROGRESS MADE TOWARDS THIS ISSUE ABOUT WOMEN GETTING EQUAL PAY AND OTHER ISSUES LIKE THAT. NOW WE WAKE UP TODAY, AND WE ARE IN THE 21st CENTURY, AND SO I WONDER WHETHER OR NOT ALL OF THIS PROTECTIVE PATERNALISTIC LAW THAT IS OUT THERE, ISN'T REALLY INSULTING TO WOMEN, WHEN WE ARE TALKING ABOUT JUST ABOUT, YOU KNOW, NOT TALKING ABOUT CHILDREN, FAMILIES, AND THAT KIND OF THING. AREN'T WE REALLY EXTENDING AN AN ANACHRONISTIC DOCTRINE THAT HAS REALLY OUTLIVED ANY KIND OF THING ON THE GROUND AS A SOCIETY, THAT WE REFER TO?

NO, YOUR HONOR, AND YOU ARE FOCUSING ON WOMEN. THIS IS ABOUT MARRIAGE. PERHAPS WOMEN ARE DOING MORE. PERHAPS WOMEN HAVE ACCOMPLISHED MORE. BUT THE MARRIAGE IS THERE. I HAVE A VERY GOOD FRIEND, IF I MAY, VERY GOOD FRIEND. HE STAYS AT HOME WITH THE CHILDREN. SHE WORKS.

THIS IS PART OF THE EVOLUTION, IF YOU WILL, THAT IT IS NOT BY ACCIDENT.

NOT NECESSARILY.

THAT YOU DON'T SEE A LOT OF CASES OUT THERE, WHERE IT IS MEN'S RIGHTS YOU KNOW, THAT ARE BEING DEFENDED OR WE ARE TRYING TO PROTECT MEN, KIND OF THING, BECAUSE THE REALITY IS, IS IT THE WAY THAT OUR CULTURE DEVELOPED AND OUR SOCIETY DEVELOPED, IS WE DID OPPRESS, AND PERHAPS TOO HEAVY A WORD TO USE, BUT IF WE START WITH THE PROPOSITION THAT AT ONE TIME WOMEN WERE ACTUALLY TREATED AS THE CHATTEL OF THEIR HUSBANDS, THAT, REALLY, IS THE BACKGROUND FROM ENGLISH LAW, THAT WE ARE MOVING FROM, AND SO SHOULD WE CONTINUE, NOW, WITH, THIS AS I SAY, HERE WE ARE NOW, IN THE 21st CENTURY, AND ISN'T THIS RATHER INSULTING --

NO.

-- TO ONE OF THE SEXES?

NOT AT ALL, AND LIKE I SAID, I DON'T THINK YOU NEED TO LOOK AT WOMEN AS OPPOSED TO MEN. IT IS ABOUT THE MARRIAGE, AND YOU KNOW, RIGHT NOW WE HAVE, THE LEGISLATURE COMES OUT WITH A FATHER'S DAY. THEY SAY WE WANT FATHERS MORE INVOLVED. I ASKED MY WIFE ON THE PLANE, WE WERE COMING BACK FROM VACATION, AND SAID WHAT IS DIFFERENT ABOUT MARRIAGE NOW? I HAVE BEEN MARRIED TEN YEARS, AND THERE IS NO EVIDENCE THAT MARRIAGE HAS CHANGED. WE AURL SAYING MARRIAGE HAS CHANGED. NOBODY IS SAYING ANY DIFFERENT HERE. 1982, THE DISSENT IS ALMOST IDENTICAL TO WHAT WAS DONE WITH FARMER'S CONCURRENCE. TEN YEARS. MY WIFE DOESN'T WORK. MY MOTHER DIDN'T WORK.

YOUR ANSWER WAS BELCHER WAS 5-2, WITH JUDGE CARLTON JOINED IN BY JUDGE ATKINS, SORT OF SAYING, EVEN BACK THEN, IF WE ARE GOING TO ALLOW, YOU SEE, THIS IS MY PROBLEM, IF WE ARE GOING TO ALLOW THESE AGREEMENTS, THE WHOLE IDEA OF THE AGREEMENT IS TO SAY WE REALLY DON'T WANT TO ENCOURAGE LITIGATION. I MEAN, WE WANT TO ENCOURAGE MARRIAGE, BUT, REALLY, IF EVERYBODY COULD JUST FIGURE OUT BEFOREHAND, HOW THINGS WOULD WORK, YOU KNOW, WE COULD HAVE SOME SIMPLE RULES. THAT WOULD REALLY BE BETTER. IT WOULD BE BETTER FOR THE CHILDREN. WE DON'T WANT TO ENCOURAGE LITIGATION. IT, THE RULE OF BELCHER ENCOURAGES LITIGATION, AND THAT IS ONE OF MY BIGGEST CONCERNS. COULD YOU ANSWER HOW IT DOESN'T ENCOURAGE LITIGATION? IT IS NOT ABOUT THE SANCTITY OF MARRIAGE. IF IT WAS ABOUT THE SANCTITY OF MARRIAGE, WE WOULDN'T ALLOW THESE PEOPLE TO WORRY ABOUT WHAT IS GOING TO HAPPEN WHEN THEY SPLIT UP, WHEN THEY GET INTO MARRIAGE, BECAUSE THAT WOULD BE BAD FOR MARRIAGE, BECAUSE WHEN YOU TAKE YOUR VOW, IT IS FOREVER, SO HELP ME ON THAT.

DO YOU KNOW THE DIFFERENCE BETWEEN CONTRACTS AND MARITAL CONTRACTS IS THAT YOU ARE IN EQUITY. NEWER A COURT OF EQUITY IN A DISSOLUTION. THE COURT OF EQUITY DEALS WITH THE ATTORNEYS FEES, WHICH UNDER ROSEN, SECTION 61.16, APPLEBAUM, BELCHER, THEY ALL SAY PART OF THE CONSIDERATION -- I AM SORRY, JUSTICE.

BUT DO YOU AGREE OR DISAGREE THAT THE ANALYSIS RIGHT NOW, IS SIMPLY NEED AND ABILITY TO PAY?

NO.

SO DO YOU AGREE OR DISAGREE WITH A PROPOSITION, LET'S SAY, THAT --

I DISAGREE WITH THAT.

I DISAGREE. YOU THINK THAT THE COURT CAN TAKE INTO CONSIDERATION THE EQUITY OF THE ARGUMENT IN CHALLENGING THE PRENUPTIAL AGREEMENT, IN DECIDING WHETHER OR NOT TO AWARD ATTORNEYS FEES?

ABSOLUTELY. IN FACT, I THINK THAT THE PROBLEM IN THIS CASE, WE HAVE TO STEM BACK TO THE PROBLEM IS, IS THAT THE TRIAL COURT DID NOT CONSIDER ANYONE, 61.16, ROSEN, APPLEBAUM, RULE 4.1-5 --

YOU AGREE THE TRIAL COURT SHOULD --

ABSOLUTELY. AND THE COURT SHOULD CONTINUE TO DO THAT. THAT IS WHY THIS CHANGE ISN'T NEEDED.

LET ME HAVE A CRACK AT THIS. THE PROBLEM I SEE, IN THIS SITUATION, IS THAT, IT, REALLY, DOESN'T HAVE TO DO, IN MY JUDGMENT, WITH WOMEN'S RIGHTS OR THAT. IT DOES HAVE TO DO, THOUGH, WITH THE FACT THAT WE HAVE TO EXAMINE THIS IN THE REALITY OF THE CHANGING DEMOGRAPHICS OF THE STATE. PEOPLE, EVEN AS OLD AS MR. TROHN AND JUSTICE ANSTEAD, ARE GETTING MARRIED, YOU KNOW, AND THEIR CHILDREN ARE CONCERNED ABOUT WHAT HAPPENS WITH THE STATE, AND IT SEEMS TO ME THAT THAT IS SOMETHING THAT THE STATE WANTS TO ENCOURAGE, THAT THERE BE COMPANIONSHIP, AND THE QUESTION I HAVE IS, REALLY, IF BELCHER IS BASED UPON A MATTER OF POLICY, AS OPPOSED TO A STATUTORY CONSTRUCTION THAT WOULD PROHIBIT THIS TYPE OF CONTRACT, THEN DOESN'T THE COURT HAVE TO, FROM TIME TO TIME, STEP IN AND EXAMINE THE PREMISE UPON WHICH THAT POLICY WAS DETERMINED? OR IS IT YOUR POSITION THAT THIS IS A MATTER OF STATUTORY CONSTRUCTION, AND THAT THIS TYPE OF STATUTE IS PROHIBITED BY, THIS TYPE OF CONTRACT IS PROHIBITED UNDER THE STATUTE?

WELL, LET ME TELL YOU THE STATE IS INVOLVED IN EVERY MARRIAGE. IT IS AN INTERESTING THING WHEN YOU READ THESE CASES. PEOPLE SAY THE STATE NOT INVOLVED. THE STATE IS A THIRD PARTY. YOU CAN'T GET MARRIED WITHOUT A LICENSE, AND YOU CAN'T SAY A LEGAL PERSON, AND WHY IS THAT? BECAUSE THE DIFFERENCE WHEN YOU ARE DOING AN ANTE NUPTIAL AND WHEN YOU ARE IN LITIGATION, NUMBER ONE IS THERE IS NO ARM'S LENGTH. YOU LOOK AT CASTO AND DELVEC YO AND POZNER, AND I DO THESE THINGS. I SIGN THESE THINGS WITH PEOPLE, AND YOU HEAR EVERY FORM OF NEGOTIATION AND SO FORTH. THESE ARE NOT ARM'S LENGTH TRANSACTIONS. THIS HAS NEVER BEEN ACKNOWLEDGED AS AN ARM'S LENGTH TRANSACTION, AND THE ISSUE, THEN, IS, WELL, IS IT ABOUT WOMEN? IS IT ABOUT THE STATE? YES, THE STATE IS PARENS PATRIAE WITH THE CHILDREN.

COMPETENT COUNSEL COULD HAVE SAID, I DON'T WANT ONE OF THOSE CLAUSES IN THERE. THEY COULD HAVE SAID THAT AND HAD IT OUT OF THERE AND IT WOULD BE GOVERNED BY 61.16, BUT THEY DIDN'T, SO I AM HAVING A HARD TIME UNDERSTANDING WHERE WE ARE GETTING INVOLVED WITH CHILDREN, WHICH ARE NEVER INCLUDED IN A PRENUPTIAL AGREEMENT OR A POST, OR A POST NUPTIAL AGREEMENT, THE COURT ALWAYS HAS THAT, AND TO TRY TO PUT THAT TOGETHER TOGETHER WITH THAT TOGETHER WITH THE IDEA OF TWO COMPETENT, INTELLIGENT ADULTS, CONTRACTING, EACH WITH THEIR OWN ATTORNEY?

FIRST OF ALL, JUSTICE, IF THEY HAVE CONTRACTED BEFORE YOU DECIDE, THEY HAVE BEEN TOLD AS IN THIS CASE, THESE PROVISIONS ARE INVALID. SO IF YOU SAY THEY HAVE BEEN ADVISED BY COMPETENT COUNSEL, COUNSEL, BEING COMPETENT, WOULD HAVE TOLD THEM AS IN THIS CASE, THIS DOESN'T MEAT PER, DON'T WORRY ABOUT THAT. THEN YOU COME INTO THE POINT, OKAY, IF YOU CHANGE THE LAW NOW, CAN WE CONSIDER --

NOW YOU ARE ASKING WHETHER WE SHOULD, IF WE CHANGE IT, WE SHOULD CHANGE IT PROSPECTIVELY.

I DON'T THINK YOU CAN DO IT RETROACTIVELY. LET ME TELL YOU, YOU CAN DO WHATEVER YOU WANT.

THE CONTRACT. WE ARE NOT TALKING ABOUT, WE WOULD BE UPHOLDING A CONTRACTUAL PROVISION, NOT INVALIDATING A CONTRACTUAL PROVISION.

WELL, IF YOU ANSWER THIS QUESTION IN THE AFFIRMATIVE --

WOULD YOU ANSWER THAT QUESTION.

I AM SORRY.

WOULDN'T WE BE UPHOLDING A CONTRACTUAL PROVISION, NOT INVALIDATING ONE?

YOU WOULD BE UPHOLD AGO CONTRACTUAL PROVISION THAT HAS BEEN RULED BY THE COURTS, UNTIL TODAY, OR LATER, WHATEVER THE COURT'S DECISION, ARE INVALID.

SO THE ATTORNEY KNEW WHEN THE COMPETENT ATTORNEY WAS ENTERING INTO, IT THAT IT WAS VOID AGAINST PUBLIC POLICY.

YES, AND WE TRIED THAT FACT.

SO I GUESS SHE WOULD SUE HER ATTORNEY.

BUT IT WAS THE LAW THEN. HE WAS RIGHT.

SO YOU ARE SAYING, LET ME SEE IF I AM UNDERSTANDING EXACTLY WHAT YOU ARE SAYING. YOU ARE SAYING THAT THE ATTORNEY TOLD THIS PARTICULAR, YOUR CLIENT, THAT THAT PROVISION OF THE PRENUPTIAL AGREEMENT WAS INVALID, BECAUSE BELCHER SAYS THAT YOU CAN'T DO THIS.

YES.

AND --

AND THAT IS IN THE SUPPLEMENTAL THAT I PROVIDED TO THE COURT, THE SUPPLEMENTAL RECORD IS THE TRANSCRIPT FROM THE ATTORNEY FEE HEARING, WHERE SHE READ THE LETTER, AND YOU HAVE TO UNDERSTAND THIS LAWYER WALKED OFF. SHE WAS NOT REPRESENTED AT THE TIME OF SIGNING. THIS LAWYER WALKED OFF BECAUSE SHE WAS TOO EMOTIONAL, BUT BEFORE THAT, WHEN SHE WAS CONSULTING, HE TOLD HER, THIS ON SUPPORT, WHAT YOU HAVE IN IN CASE IS IT SAID YOU WILL START GETTING $5,000 A MONTH FOR 18 MONTHS, WHICH BEGINS AT THE TIME OF SEPARATION, WHICH THE COURT SAID NO. THAT LAWYER TOLD THEM THAT, IS NOT VALID. IT IS AGAINST PUBLIC POLICY. IT IS INVALID. THE ATTORNEY FEE PROVISION IS NOT VALID. SO WHEN SHE ENTERED INTERESTS, THE OTHER THING IS THAT YOU GOT IN THIS CASE, THE TRIAL JUDGE. WHEN THE TRIAL JUDGE FOUND WHETHER IT WAS A REASONABLE AGREEMENT OR NOT BECAUSE THAT GOES INTO THE DISCLOSURE ISSUES FOUND, AND I SPECIFICALLY QUOTE, FOUND IN THE ORDER FINDING IT TO BE VALID, THAT SHE IS ALSO GETTING TEMPORARY FEES, AND SHE IS GOING TO GET TEMPORARY SUPPORT!

CAN I ASK YOU A QUESTION BEFORE YOU SIT DOWN.

YES, SIR.

DO YOU AGREE WITH YOUR OPPOSING COUNSEL THAT THE BELCHER RULE GOES TO SUPPORT, AS WELL AS ATTORNEY FEES?

ABSOLUTELY. I THINK, I AM SORRY, YOU ARE KIDDING YOURSELF, IF YOU THINK THAT YOU CAN ONLY CHANGE ONE WITHOUT THE OTHER, BECAUSE YOU WILL HAVE PEOPLE RIGHT BACK HERE. THEY ARE HAND-IN-HAND. WHEN YOU HAVE TEMPORARY ATTORNEYS FEES, IT IS TEMPORARY SUPPORT. WE USE THAT ARGUMENT ALL THE TIME, BECAUSE IT IS A VERY VALID ISSUE.

WELL, WHAT IS THE PROBLEM ABOUT PROVIDING THE TEMPORARY ATTORNEYS FEES, BUT IN ORDER TO ANSWER JUSTICE PARIENTE'S CONCERN ABOUT ENCOURAGING LITIGATION, BECAUSE WE HAVE ALL SEEN IT IN THE CASE, THAT, IF THE PARTY WHO PREVAILS, EITHER IN SETTING ASIDE THE AGREEMENT OR ENFORCING THE AGREEMENT, PREVAILS, THAT THAT PORTION OF THE FEES RELATED SOLELY TO THE LITIGATION OF THE ENFORCE ABILITY OF THE PRENUPTIAL AGREEMENT, SHOULD THAT PORTION OF THE CLAUSE, IF THE COURT FINDS IT FAIR AND GOES THROUGH ALL OF THE OTHER ANALYSIS, WHY SHOULD THAT PERSON NOT BE ENTITLED TO RECOUP THOSE ATTORNEYS FEES, SIMPLY RELATED TO ENFORCING THE VALIDITY OF THE AGREEMENT? HOW DOES THAT HURT YOUR CAUSE?

WELL, YOU DON'T NEED TO CHANGE THE LAW TO HAVE THAT RESULT. BECAUSE WHAT YOU HAVE HERE, IS WHAT WAS DONE IN THIS CASE. YOU HAVE 61.16. ROSEN TALKS ABOUT MARRIAGE. FRIVOLOUS.

YES, BUT THAT IS FRIVOLOUS IN POST-DISSOLUTION PROCEEDINGS. YOU CAN CONSIDER IT IN POST DISSOLUTION, ENFORCEMENT TYPE ACTIONS AND THINGS LIKE THAT, BUT UNDER 61.16, IS IT YOUR POSITION THAT, IF, IN LIKE IN THIS CASE, THIS JUDGE FOUND THAT THE AGREEMENT WAS FULLY ENFORCEABLE, AND THOUGH THE WIFE'S POSITION MAY NOT BE FRIVOLOUS, WHICH IS A VERY HIGH STANDARD, BUT WAS REALLY NOT IN GOOD FAITH, IS IT YOUR POSITION THAT HE COULD HAVE AWARDED ALL OF THE FEES, AND SHE WOULD HAVE HAD TO PAY THEM OR REDUCE IT FROM AN AWARD?

YES, AND LET ME EXPLAIN WHY. WHAT YOU HAD IN THIS CASE IS YOU HAD SIMULTANEOUS ATTORNEY FEE REQUESTS. THE WIFE WAS ADJUDGED ON 61.16 FACTORS. THE COURT FOUND THIS MAN HAS IN EXCESS OF $12 MILLION. HE HAD ASSETS, ET CETERA, ET CETERA. SHE IS ENTITLED, UNDER 61.16, FOR THE FEES AND THESE PROVISIONS ARE NOT APPLICABLE. THEN, WITHOUT REDUCING OR SETTING OFF, HE SAYS, UNDER THE PREVAILING PARTY ALONE, HE WAS PREVAILING PARTY, AND IT IS 63,000, ALL OF THESE FEES THAT HE TALKED ABOUT WERE NOT RELATED JUST TO THE ANTE NUPTIAL AGREEMENT, BECAUSE THERE WERE ALSO CHILDREN, DOMESTIC ISSUES, VIOLENCE ISSUES AND SO FORTH, BUT THEN HE GOES AND DOES THAT WITH JUST CONTRACT. NOW, WHAT HE COULD HAVE DONE --

BUT HE ALSO AWARD HER, HER FEES, FOR HER ATTORNEY CHALLENGING THE AGREEMENT.

RIGHT, AND HE COULD HAVE SAID YOU DON'T GET THAT, AND YOU HAVE THE FEE AWARD, AND YOU ARE ASKING FOR 61.16. THE FIRST THING WE LOOK AT, NEED AND ABILITY TO PAY, THAT DOESN'T APPLY.

LET ME COME BACK BEFORE YOU ARE OUT OF TIME, TO THE QUESTION THAT I TRIED TO ASK BEFORE, AND THAT IS, IS IT YOUR POSITION THAT THIS IS A, NOT AN ISSUE OF STATUTORY CONSTRUCTION? THERE IS NO STATUTORY PROHIBITION AGAINST THIS TYPE OF PROVISION IN THE CONTRACT?

I DON'T THINK THERE IS A STATUTORY PROHIBITION, BUT THERE IS NOT A STATUTORY INCLUSION.

OKAY, AND SO IT IS A MATTER THAT THE COURT MADE A POLICY DECISION AND THE JUDGE'S DECISION, AND YOU ARE ASKING THAT THE COURT STAY WITH THAT POLICY, IS THAT CORRECT?

YES, AND I ALSO THINK THAT PUBLIC POLICY CHANGED, AND IF YOU ADD IN THERE THAT PREVAILING PARTY IS OKAY, YOU ARE ALSO ADDING 61.16.

THERE IS A WRING NECESSARILY THIS CASE THAT MAY NOT BE PRESENT IN EVERY CASE, AND THAT IS THAT THE HUSBAND HAD $12 MILLION IN ASSETS BUT THE WIFE HAD $1 MILLION IN ASSETS, CORRECT, AND AT LEAST IN A CASE WHERE THE SPOUSE, THE OTHER SIDE OF THE PRENUPTIAL AGREEMENT WHICHEVER IT IS, HAS THE ABILITY TO PAY THE ATTORNEYS FEES, WHY SHOULDN'T WE ENFORCE A CONTRACTUAL AGREEMENT IN THOSE TYPES OF CASES?

WELL, VERY GOOD POINT IN WHAT YOU ARE SAYING, WHICH IS WHY DON'T WE JUST GO BACK TO 61.16 BECAUSE THAT IS A FACTOR ANYWAY, AND YOU KNOW, ONE THING I WANT TO POINT OUT IS, MAYBE THIS CASE IS A LITTLE DIFFERENT THAN OTHER PLACES AND MAYBE YOU HAVE A LOT OF WEALTHY PEOPLE THAT HAVE ANTE NUPTIALS. I WOULD SAY MORE OFTEN THAN NOT, BUT ONE OF THE CASES THAT ALWAYS COME TO MIND IS ABOUT THE POSTAL WORKER AND HIS WIFE. THEY DIDN'T HAVE MILLIONS OF DOLLARS, AND THEY WERE DEALING WITH RETIREMENT AND THIS AND THAT AND SO FORTH, SO YOU MEAN, WHEN WE STAMP THERE, AS THE LAW, IT IS GOING TO AFFECT EVERYBODY.

YOU HAVE A CASE INVOLVING A POSTAL WORKER?

NO. NO. THERE IS A CASE THAT TALKS ABOUT, WHEN YOU MODIFY ALIMONY, IF IT IS NOT --

YOU SEE, THE PROBLEM THAF, THOUGH, AND I WILL GO BACK TO THIS. I JUST WANT TO UNDERSTAND SOMETHING. 61.16, AND THIS COURT HAS SAID IT AND A LOT OF APPELLATE COURTS HAVE SAID IT. WE SEE IT AS DRIVING LITIGATION, WHICH IS THAT ATTORNEYS END UP LITIGATING OVER ATTORNEYS FEES, INSTEAD OF TRYING TO DO THEIR VERY BEST TO TRY TO RESOLVE CASES AT THEIR EARLIEST OPPORTUNITY. NOW, YOU SEEM TO SAY THAT THE HUSBAND HERE, UNDER OUR CASE LAW, AND ROSEN, COULD HAVE OBTAINED ATTORNEYS FEES UNDER 61.16?

YES.

AND I THINK THAT THE PREVAILING NOTION OF TRIAL JUDGES IS THAT, WHAT WOULD BE, WHAT WOULD BE UNDER, THERE WOULD BE NO NEED OR ABILITY TO PAY. WHAT WOULD BE THE BASIS FOR THAT?

BUT THIS COURT IN ROSEN, SAID THAT IS WHERE YOU START, AND THEN YOU CONSIDER THE OTHER FACTORS.

THE FIRST HAS TO BE THE NEED AND ABILITY TO PAY, THEN YOU CAN REDUCE IT, IF THE PERSON WHO HAS THE NEED AND ABILITY TO PAY, HAS NEEDLESSLY LITIGATED THE CASE, BUT IT DOESN'T START WITH THE IDEA THAT, IF YOU DON'T HAVE NEED AND ABILITY TO PAY, YOU CAN STILL GET THE FREE RIDE UNDER 61.16. THIS ISN'T LIKE AN INSURANCE COMPANY, YOU KNOW, THE INSURANCE COMPANY PREVAILING PARTY.

THAT IS TRUE BUT YOU KNOW, JUSTICE, LET ME POINT OUT SOMETHING.

DO YOU AGREE?

I AGREE THAT 61.16 APPLIES TO BOTH PARTIES.

BUT YOU FIRST HAVE TO ESTABLISH NEED AND ABILITY TO PAY.

ABSOLUTELY.

OKAY. SO THEN THE HUSBAND WITH $12 MILLION, WHERE WOULD THE, WHERE COULD THEY HAVE GONE TO GET ATTORNEYS FEES UNDER 61.16?

WELL, THAT IS COURT HAS SAID IN ROSEN, THAT IS WHERE YOU START, AND THEN YOU LOOK AT THE OTHER FACTORS. IF THEY FOUND, AND I KNOW YOU THINK FRIVOLOUS IS UP HERE, BUT WHEN YOU ARE DEALING WITH MERIT AND SO FORTH, IF THEY FOUND THAT THAT WAS DONE, IT WAS OVER-LITIGATED. IF IT WAS WITHOUT MERIT AND SO FORTH, THEY COULD HAVE AWARDED THE HUSBAND FEES. AND THEY STILL CAN DO THAT, UNDER THE EXISTING LAW. OOH

CHIEF JUSTICE: WE ARE GOING, THAT IS A CASE FOR ANOTHER DAY. I WANT TO, AGAIN, BECAUSE I STARTED THE QUESTION, AND THIS, THE ORAL ARGUMENT, ASKING ABOUT WHETHER THIS WAS A SITUATION OF STATUTORY INTERPRETATION OR WHETHER WE HAD A SITUATION ABOUT WHETHER THESE, HAVING ATTORNEYS FEE AGREEMENT IS VOID AGAINST PUBLIC POLICY. DO I HEAR YOU TO SAY THAT, IF WE RECEDE FROM BELCHER, THAT WE WILL CONFLICT WITH 61.16?

YES. I THINK YOU ARE --

WHERE DO YOU GET THAT FROM?

BECAUSE YOU ARE SAYING THAT YOU CAN WAIVE, AND 61.16 DOESN'T SAY YOU CAN WAIVE. IT SAYS FEES WILL BE AWARDED, BASED ON THE NEED AND ABILITY TO PAY, AND ROSEN HAS COME IN AND SAID THESE ARE THE FACTORS.

DOES CHAPTER 61 TALK ABOUT PRENUPTIAL AGREEMENTS AND POST NUPTIAL AGREEMENTS?

NO.

THAT'S RIGHT. THESE AGREEMENTS ARE OUTSIDE OF 61.16. THAT IS THE WHOLE POINT, TO PREVENT THEM FROM HAVING TO GO AND BE LITIGATED, AND THAT IS WHY YOU ADVISE CLIENTS TO PRESENT THEM, TO AVOID LITIGATION LATER ON.

I DON'T THINK 61.16, I DON'T BELIEVE THAT IT ENCOURAGES LITIGATION. TRIAL COURTS ARE CONTROLLING A LOT OF THE LITIGATION, AND WHEN THE FEE AWARDS, AND WHEN YOU AS A LAWYER ARE UNDER AN ETHICAL OBLIGATION --

YOU HAVEN'T TALKED TO THE SAME TRIAL JUDGES THAT I TALK TO.

I THINK EVERY JUDGE THINKS THAT THINGS ARE BEING OVER-LITIGATED, TO A CERTAIN EXTENT, AND I CERTAINLY, AS A PARTY OF FAMILY LAW, THINK THINGS WOULD BE MUCH NICER WHEN EVERYBODY GETS ALONG, BUT THEY DON'T, AND THAT IS WHY YOU SETTLE IT WHAT FEE AND NEGOTIATION OF AN AGREEMENT, BUT THAT IS NOT THE CASE HERE. I AM HIM SORRY. THAT IS NOT AN ARM'S LENGTH AWAY.

JUSTICE QUINCE, THAT WAS PARAGRAPH 26 THAT YOU ARE REFERRING TO IN THE ANTE NUPTIAL AGREEMENT.

CHIEF JUSTICE: THANK YOU.

JUST AS TO THE LAST, BELCHER PROLONGED AND EXACERBATES A DIFFICULT PROCESS, DISSOLUTION. IT ENCOURAGES THE CONFLICT AND IF YOU WANT TO CALL IT HATRED BETWEEN THE PARTIES, THAT SPREADS OUT ACROSS THE ENTIRE FAMILY. IT DOES NOTHING TO SUPPORT MARRIAGE.

YOU AGREE, THOUGH, THAT EVEN IF WE RECEDED FROM BELCHER, THAT IF THEY HAD TO LITIGATE SUPPORT, ALIMONY UP UNTIL THE TIME OF DISSOLUTION, THAT THEY COULD GET FEES FOR IT UNDER 61.16. AM I CORRECT?

YES, JUDGE, AND I HAVE ONE THING. JUDGE, YOU ASKED ME A QUESTION EARLIER ABOUT IS IT A CONTRACT, AND THAT IS IT, JUST FOUR SQUARE. BELCHER IS PREMISED ON THE SPOUSE BECOMING A WARD OF THE STATE. I THINK THAT, IF THERE WERE EVIDENCE THAT THE SPOUSE WOULD BECOME A WARD OF THE STATE, THEN THAT WOULD BE AN EXCEPTION TO THE CONTRACT, AND HOW A CIRCUIT COURT WOULD DEAL WITH THAT, I DON'T KNOW, BUT IT SHOULDN'T TAKE A LOT OF MONEY OR $300,000 IN FEES TO DO IT. I WOULD ASK THE COURT TO ANSWER THE CERTIFIED QUESTION IN THE AFFIRMATIVE, AND I THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH. THE COURT WILL BE IN RECESS UNTIL NINE O'CLOCK TOMORROW MORNING.

MARSHAL: PLEASE RISE.