MICHEL WHISSELL v. SHERRONE WHISSELL , 2017 Fla. App. LEXIS 10059 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHEL WHISSELL,
Appellant,
v.
SHERRONE WHISSELL,
Appellee.
No. 4D15-4641
[July 12, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No. 2014-DR-
001981-XXXX-SB.
Eddie Stephens of Ward, Damon, Posner, Pheterson & Bleau, West
Palm Beach, for appellant.
Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, and Elizabeth
J. Kates, Pompano Beach, for appellee.
GROSS, J.
We affirm all aspects of the amended final judgment of dissolution of
marriage, save two. We reverse the judgment insofar as it failed to provide
Former Husband with specific steps to reestablish contact with the minor
child beyond supervised timesharing. We also reverse the alimony award
to Former Wife as it was contrary to the parties’ intent in the prenuptial
agreement, wherein they waived any right to alimony.
Timesharing
The trial court found that it would be contrary to the child’s best
interests for Former Husband to enjoy unsupervised timesharing. This
finding was supported by competent substantial evidence. However, the
judgment fails to provide Former Husband with specific steps to obtain
unsupervised timesharing. “The failure to ‘set forth any specific
requirements or standards’ for the alleviation of timesharing restrictions
is error.” Witt-Bahls v. Bahls, 193 So. 3d 35, 38 (Fla. 4th DCA 2016)
(quoting Ross v. Botha, 867 So. 2d 567, 571 (Fla. 4th DCA 2004)). “This
applies to both the prevention of timesharing altogether and to
restrictions.” Id. While the trial court need not “set out every minute detail
of the steps to reestablish unsupervised timesharing,” the parent must
leave the courtroom “knowing that if [they] satisfactorily accomplish[]
relatively specific tasks, [they] will be able to reestablish unsupervised
timesharing.” Id. at 39. Because the trial court did not set forth specific
steps for Former Husband to alleviate the restriction on timesharing, this
part of the judgment must be reversed.
Alimony
The parties waived their right to alimony in a prenuptial agreement.
Notwithstanding the alimony waiver, the prenuptial agreement provided
that upon the entry of a final judgment of dissolution of marriage, Former
Husband or one of his companies would pay Former Wife a gross salary of
$6,000 per month for twenty-four months from the date of the entry of the
final judgment of dissolution. Although the trial court found the parties
waived their right to alimony in the prenuptial agreement, it found the
parties intended the salary payments “would be a form of alimony e.g.
durational alimony.” This was error.
“Valid prenuptial agreements regarding post-dissolution support are
contracts.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005).
“[C]ontracts are to be construed in order to give effect to the intent of the
parties.” Burns v. Barfield, 732 So. 2d 1202, 1205 (Fla. 4th DCA 1999).
Neither party questioned the validity or enforceability of the prenuptial
agreement.
In waiving the right to alimony, the parties intended to take the gross
salary payments outside chapter 61, Florida Statutes, and outside the
power of the trial court to hold Former Husband in contempt in the event
he fails to pay. See English v. Galbreath, 462 So. 2d 876, 877 (Fla. 2d DCA
1985) (“Alimony payments . . . are enforceable by contempt proceedings.”);
Walters v. Walters, 96 So. 3d 972, 976 (Fla. 4th DCA 2012) (recognizing
the trial court’s ability to hold a payor “in contempt for failing to pay the
amount of court-ordered alimony to a payee.”). Instead of enforcement by
contempt, the employment prenuptial agreement contemplated that the
non-payment of “salary” would be enforceable as any other employment
contract, by a traditional breach of contract action. The trial court thus
erred in failing to give the prenuptial agreement the effect intended by the
parties.
Conclusion
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The judgment is reversed and remanded for the trial court to provide
Former Husband with the steps required to lift the timesharing
restrictions. “We believe that modification of the order is possible from the
record alone and do not suggest that a new trial is necessary.” Witt-Bahls,
193 So. 3d at 39. We also reverse paragraph 15 of the judgment, where
the trial court erred by treating the gross salary payments set forth in the
prenuptial agreement as a form of durational alimony. In all other
respects, the judgment is affirmed.
Affirmed in part, reversed in part, and remanded.
GERBER, C.J., and KUNTZ, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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