Blitz v. Florida Department of Revenue

898 So. 2d 121, 2005 Fla. App. LEXIS 2511, 2005 WL 475516
CourtDistrict Court of Appeal of Florida
DecidedMarch 2, 2005
DocketNo. 4D03-3974
StatusPublished
Cited by2 cases

This text of 898 So. 2d 121 (Blitz v. Florida Department of Revenue) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blitz v. Florida Department of Revenue, 898 So. 2d 121, 2005 Fla. App. LEXIS 2511, 2005 WL 475516 (Fla. Ct. App. 2005).

Opinion

SHAHOOD, J.

This is an appeal by the former husband, Arthur Blitz (Blitz), from an Order Confirming Registration of Foreign Support Order and Establishing Arrears. Because we hold the trial court erred in interpreting the parties’ support agreement and subsequent modifications and in determining child support arrearages, we reverse and remand.

On November 7, 1996, the marriage of Blitz and Catherine Maxwell (Maxwell) was dissolved in New Jersey with the entry of a Final Judgment of Divorce. The Final Judgment incorporated the parties’ Property Settlement Agreement (Agreement), which had been entered into on September 13, 1995, but the Agreement was not merged into the final judgment. The Agreement contains the following provisions which are relevant to the issues on appeal:

9. The failure of either party to insist upon strict performance of any provision of this Agreement shall not be deemed a waiver of the right thereafter to insist upon performance of that or any other provision contained herein.
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11. No modifications or waiver of any of the terms of this Agreement shall be valid unless in writing-and executed with the same formality as this Agreement.
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13. This Agreement shall be construed according to the laws of the State of New York and may be enforced within the State of New Jersey and any court of competent jurisdiction.
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26. The Husband shall pay to the Wife on the first day of each week beginning Monday the sum of FIVE HUNDRED ($500.00) DOLLARS child support ... until her child shall be emancipated or deceased....
27. The Husband shall pay to the Wife as alimony and support on the first day of each week being Monday the sum of FIVE HUNDRED ($500.00) DOLLARS until such time as the Wife shall die, remarry or live in common with an unrelated male adult....

Because Blitz resided in New York, and Maxwell in Florida, the Florida Department of Revenue filed a request that New York register and enforce the New Jersey Judgment of Divorce and to collect arrears, which she alleged to be $57,500. In July 2002, the circuit court in Palm Beach County was designated as the local depository by virtue of Maxwell’s residence in Palm Beach County, and Blitz was sent a Notice of Delinquency informing him of the arrearages. Blitz responded with a denial of any delinquency and a request for a copy of all supporting documentation on which the calculation was based.

Thereafter, a hearing was held before a general master to adjudicate the arrear-age, if any. Maxwell and Blitz were the only two witnesses to testify at the hearing.

When Blitz began paying child support, he paid to an account held in a bank in New York. The account was used by Maxwell only for receiving child support deposits. In calculating the arrearages, she reviewed her canceled checks and bank [124]*124deposit records. In addition, she reviewed information provided to her by Blitz and adjusted her figure down accordingly. By Maxwell’s calculations, as of June 24, 2003, the date of the hearing, Blitz owed $56,376.32 in back child support. That figure covered the time period from November 1996 through December 2002. She calculated alimony arrearages in the amount of $30,576.32 for the time period from November 1996 through May 1999. With regard to a lump sum payment of $5,600, which Blitz claimed to have paid, Maxwell stated that she did not remember receiving the money or signing the receipt which was entered into evidence.

When Blitz attempted to introduce into evidence three post-judgment agreements purportedly modifying the terms of the original agreement, the court denied the request, stating:

I mean in Florida you have to submit an agreement to the court and have it approved.
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Well as far as I know, I mean I’m here to enforce the order not subsequent agreement [sic].
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Well, I’m going to do the best I can to do with the order that was entered by the court in New Jersey and I’m not going to consider these other agreements and if I’m wrong then the court of New York will need to get involved and deal with it. I’m just going to indicate on whatever order I end up doing that the subsequent agreements were not admitted into evidence and I’m basing mine on the original order.

Thereafter, the general master issued a report with findings of fact and conclusions of law. The general master found Blitz to be in arrears on his child support obligation in the amount of $82,172.65 through December 30, 2002. Blitz moved to vacate the report and filed various other pleadings, arguing that subsequent agreements between the parties, which amended the original judgment and Blitz’s support obligation, had been entered into, but erroneously not considered by the general master. Based on the general master’s report, the trial court then entered the order being appealed.

The Settlement Agreement at issue was dated September 13,1995 and entered into in New Jersey. It resolved all property settlement issues, as well as established alimony ($500 per week) and child support obligations ($500 per week). At the time of the Agreement, both parties were residents of New York and there were divorce proceedings pending in both New York and New Jersey. The Agreement contains a choice of law provision electing New York law as the governing law. In addition, the Agreement expressly provides that all modifications or waivers of any of the terms be in writing.

On November 23, 1996, the parties entered into an “Amendment to Agreement of Separation.” This amendment modified the geographical restrictions imposed in the original Agreement to allow Maxwell to move with the minor child to Florida. In addition, Blitz’s alimony obligation was reduced to $200 per week. On August 7, 1998, the parties entered into a second amendment, which voided the November 23, 1996 amendment and reinstated the terms of the original agreement. As a result, Blitz’s alimony obligation of $500 per week'was reinstated. Finally, on January 28, 1999, a third agreement was entered into by the parties. Pursuant to this third agreement, Blitz was released from any further alimony obligations. In determining the amount of arrearages, the trial court considered only the original Agreement and not the subsequent modifica[125]*125tions. Blitz asserts that this was error. We agree.

Choice of law provisions in property settlement agreements are valid and enforceable pursuant to the Uniform Interstate Family Support Act, as codified in Chapter 88, Florida Statutes. See generally Keeton v. Keeton, 807 So.2d 186 (Fla. 1st DCA 2002)(holding that property settlement agreement was enforceable in Florida with Kentucky law controlling). A trial court’s determination as to which law to apply is reviewed de novo. See Collins Moving & Storage Corp. v. Kirkell, 867 So.2d 1179 (Fla. 4th DCA 2004).

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Bluebook (online)
898 So. 2d 121, 2005 Fla. App. LEXIS 2511, 2005 WL 475516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blitz-v-florida-department-of-revenue-fladistctapp-2005.