DONALD DUCHATEAU vs JEANNINE DUCHATEAU N/K/A JEANNINE DUCHATEAU VERBOS

• Court: District Court of Appeal of Florida
• Decided: June 2, 2023
• Docket: 22-2609
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

DONALD DUCHATEAU,

Appellant,

v. Case No. 5D22-2609 LT Case No. 2018-DR-035749

JEANNINE DUCHATEAU N/K/A JEANNINE DUCHATEAU VERBOS,

Appellee.

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Opinion filed June 2, 2023

Nonfinal Appeal from the Circuit Court for Brevard County, Kathryn M. Speicher, Judge.

Elizabeth S. Harris, of Harris Appellate Law Office, Mims, and Richard J. Feinberg, of the Law Office of Richard J. Feinberg, Indialantic, for Appellant.

Edward E. Emrick, IV, of Dewitt Law Firm, P.A., Orlando, for Appellee.

LAMBERT, C.J. Donald Duchateau (“Former Husband”) appeals the trial court’s

nonfinal order denying his motion to ratify and enforce a settlement

agreement dated May 28, 2021. For the following reasons, we dismiss the

appeal for lack of jurisdiction.

BACKGROUND

The parties to this appeal are former spouses whose marriage was

dissolved in 2018. The final judgment dissolving their marriage incorporated

the parties’ Marital Settlement Agreement. Pertinent here, this agreement

provided that “[n]o modification or waiver by the parties of any of the terms

herein shall be valid unless executed in writing by both parties.”

In 2021, Former Husband filed a motion under Florida Family Law Rule

of Procedure 12.540 to set aside the final judgment and Marital Settlement

Agreement. During this postjudgment litigation, the parties and their counsel

appeared at a court reporter’s office on May 28, 2021, for depositions. While

there, the parties purportedly reached a settlement of their pending litigation.

This 2021 settlement agreement, which would have the effect of modifying

the parties’ 2018 Marital Settlement Agreement, was orally announced,

confirmed by the parties, and later transcribed by the court reporter.

However, no written agreement modifying the 2018 Marital Settlement

2 Agreement, as expressly required by this agreement, was ever executed by

Former Wife.

Several months later, Former Husband moved to ratify and enforce the

May 28, 2021 settlement agreement. After an evidentiary hearing, the trial

court denied Former Husband’s motion; and this appeal ensued.

JURISDICTION

Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ix) permits the

appeal of nonfinal orders that determine “that, as a matter of law, a

settlement agreement is unenforceable, is set aside, or never existed.”

Therefore, our jurisdiction to address the merits of this appeal depends on

whether the trial court’s order determined, as a matter of law, that the May

28, 2021 agreement was unenforceable, set aside, or never existed.

In Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1182–83 (Fla.

2020), the Florida Supreme Court addressed how to interpret the phrase “as

a matter of law” in the context of a rule 9.130 appeal. The court held that for

such an order to be reviewable, there must be an express “as a matter of

law” determination on the face of the order. Id. at 1182. Further, the

reviewing court may not attribute a determination of “as a matter of law” to

the order based on its own review of the underlying record. Id.

3 Here, the simple answer as to whether we have jurisdiction to review

this order is that, under Jackson, the trial court’s order did not expressly

determine, as a matter of law, that the May 28, 2021 settlement agreement

was not enforceable, never existed, or was set aside. See Powell v.

Woodward, 300 So. 3d 784, 785 (Fla. 1st DCA 2020). Moreover, on the face

of the order, the trial court, following the presentation of evidence, made a

factual finding that Former Husband did not prove the exception to the rule

that otherwise precludes the oral modification of a written agreement when

the written agreement expressly prohibits oral modification. See Pro. Ins. v.

Cahill, 90 So. 2d 916, 918 (Fla. 1956) (explaining the exception that even

when a written contract contains a provision prohibiting its alteration except

in writing, it may nevertheless be subsequently altered or modified by an oral

agreement “if the latter has been accepted and acted upon by the parties in

such manner as would work a fraud on either party to refuse to enforce it”).

APPEAL DISMISSED.

WALLIS and KILBANE, JJ., concur.