Simon v. Simon , 2012 Fla. App. LEXIS 3734 ( 2012 )

83 So. 3d 927 (2012)

Janie Noble SIMON, Appellant,
v.
Eric A. SIMON, Appellee.

No. 4D11-2809.

District Court of Appeal of Florida, Fourth District.

March 7, 2012. Rehearing Denied April 16, 2012.

Lee Milich of Lee Milich, P.A., Fort Lauderdale, for appellant.

A. Matthew Miller of Boies, Schiller & Flexner, LLP, Hollywood, for appellee.

GERBER, 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.