Sidney C. Rosenthal v. Gretchen A. Rosenthal , 2016 Fla. App. LEXIS 13701 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
SIDNEY C. ROSENTHAL, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1035
GRETCHEN A. ROSENTHAL,
Appellee.
_____________________________/
Opinion filed September 13, 2016.
An appeal from the Circuit Court for Escambia County.
Jan Shackelford, Judge.
Stephen A. Pitre of Clark Partington, Pensacola, and Trevor A. Thompson of Clark
Partington, Tallahassee, for Appellant.
Travis R. Johnson of Meador, Johnson & Bushness, P.A., Pensacola, for Appellee.
WOLF, J.
Appellant, the former husband, entered into a marital settlement agreement
with the former wife that was incorporated into the trial court’s final judgment of
dissolution of marriage. The former husband later petitioned to modify the alimony
awarded to the former wife in accordance with the marital settlement agreement
because of the former wife’s cohabitation with a third party. The trial court
dismissed the petition, holding that the parties had impliedly waived the right to
modify the alimony award pursuant to the language of the marital settlement
agreement. The former husband argues the trial court’s determination was
erroneous because the marital settlement agreement contained neither an explicit
waiver of the right to modify alimony nor unambiguous language demonstrating
the intent of the parties to waive the right to modify the alimony award. We agree
and reverse and remand for the trial court to hold further proceedings concerning
the intent of the parties regarding modification and whether the former husband
has demonstrated entitlement to modification.
I. The Marital Settlement Agreement
The marital settlement agreement did not explicitly contain language
waiving the parties’ right to modify the alimony amount detailed in the marital
settlement agreement.
As to alimony, the agreement awarded the former wife staggered monthly
awards over a period of five years: for the first year, she would receive $6,500
monthly; in the second year, she would receive $6,000 monthly; in the third and
fourth years, she would receive $5,500 monthly; and in the fifth year, she would
receive $5,000 monthly. The “alimony” provision noted that the alimony payments
“shall terminate on June 30, 2018 or the death of either party.” The “alimony”
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provision was silent regarding future modification of the award; the “child
support” provision, on the other hand, specifically stated, “The child support
numbers may be modified at any time if there is a substantial change in the
circumstances.”
The agreement also contained a “modification” provision, which noted the
burden of proof “[i]n the event either party seeks to modify any provision of this
Agreement in Court,” apparently allowing modification in certain circumstances.
(Emphasis added).
II. Analysis
The standard of review in this case is de novo. See Graham v. Graham, 123
So. 3d 625, 627 (Fla. 1st DCA 2013) (“Interpretation of marital settlement
agreements is subject to de novo review, just as any other contract interpretation is,
at least in the absence of parol evidence.”).
Section 61.14(1)(a), Florida Statutes (2013), allows for the modification of a
marital settlement agreement that awards alimony to a party in a dissolution
proceeding if “the circumstances or the financial ability of either party changes.”
“In Florida, the statutory right to modification, unless specifically waived, is
incorporated as a matter of law in any agreement or judgment providing for
alimony.” Harmon v. Harmon, 629 So. 2d 1011, 1012 (Fla. 4th DCA 1993).
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The right to modify awarded alimony may be waived by either party, and
this waiver may be implied; however, an implied waiver must be clear and
unambiguous: “‘Parties to a marriage may waive their statutory right to seek
modification of alimony provisions in a settlement agreement if the language in the
agreement clearly and unambiguously expresses waiver or if the interpretation of
the agreement as a whole can lead to no other conclusion but waiver.’” Cook v.
Cook, 94 So. 3d 683, 685-86 (Fla. 4th DCA 2012) (quoting Tapp v. Tapp, 887 So.
2d 442, 444 (Fla. 2d DCA 2004) (internal citation omitted)).
Here, we find the language of the marital settlement agreement did not
clearly and unambiguously indicate the parties’ intent to waive the right to modify
the alimony award.
The former wife urges us to read the marital settlement agreement as
containing an implied waiver of the right to modify the alimony award because the
agreement did not explicitly state the award was modifiable. She contends the
“child support” provision’s explicit allowance of modification, coupled with the
“alimony” provision’s silence on the matter, proved the parties’ intent to imply
waiver of the right to modify the alimony award. We do not agree when the
agreement is read as a whole.
This particular agreement also included a “modification” provision that
alluded to the ability of the parties to modify “any provision” of the agreement. At
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best, we find the agreement was ambiguous regarding the parties’ right to modify
the alimony award and decline to find the agreement’s silence indicated a clear
intent to disallow such modification.
The former wife further emphasizes the marital settlement agreement
allowed for termination of the alimony award in only two circumstances: when
five years passed or when either party died. She claims the agreement’s silence in
the case of the former wife’s cohabitation with a third party indicated the parties’
clear waiver of the right to modify alimony for that reason, citing DePoorter v.
DePoorter, 509 So. 2d 1141, 1145 (Fla. 1st DCA 1987) (“An agreement which
fails to make provision for unmarried cohabitation may be interpreted as
precluding reduction or termination of alimony on that ground.”) (emphasis
added).
However, DePoorter differs from the current case. There, an evidentiary
hearing was held where the former wife presented testimony; such testimony might
have included parol evidence regarding the parties’ intent to waive the right to
modify alimony payments. Id. at 1144 n.4. Here, no such parol evidence was
admitted, and the marital agreement itself is silent regarding the modification of
the alimony award.
Again, without the assistance of parol evidence to determine the parties’
clear intent, we decline to determine that the agreement’s silence unambiguously
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indicated the parties’ desire to prevent the modification of the alimony award
where other provisions of the agreement created ambiguity by suggesting the
parties’ opposite intent. Because of the ambiguity of the agreement as a whole
regarding the modification of the alimony award, we cannot agree with the trial
court’s determination that “one can reach no other conclusion or interpretation
other than there is an implied waiver of the right to modify alimony.”
We further find the former wife’s claim that the marital settlement
agreement was a marital property settlement agreement, and therefore the alimony
award was inherently nonmodifiable, meritless.
“It is well settled that a ‘true’ or ‘pure’ marital settlement agreement,
containing provisions whereby one party surrenders valuable property interests in
consideration for the right to receive periodic payments, is not subject to
modification.’” Hughes v. Hughes, 553 So. 2d 197, 198 (Fla. 2d DCA 1989)
(citing Salomon v. Salomon, 196 So. 2d 111, 112 (Fla. 1967)). “The test for
determining when periodic payments constitute support or a methodology for
division of property, seems to be whether the payor spouse’s payments are given in
exchange for a reciprocal exchange of property interests from the recipient
spouse.” Petty v. Petty, 548 So. 2d 793, 795 (Fla. 1st DCA 1989). The plain
language of the agreement did not specifically reflect such a bargained-for
exchange.
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We, therefore, REVERSE the trial court’s dismissal of the former husband’s
petition to modify the alimony award and REMAND for the trial court to conduct
further proceedings to determine if a waiver was contemplated by the parties, and
if not, whether the former husband is entitled to modification.
B.L. THOMAS and OSTERHAUS, JJ., CONCUR.
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