Herbst v. Herbst

153 So. 3d 290, 2014 Fla. App. LEXIS 15244, 2014 WL 4851687
CourtDistrict Court of Appeal of Florida
DecidedOctober 1, 2014
Docket2D13-2745
StatusPublished
Cited by5 cases

This text of 153 So. 3d 290 (Herbst v. Herbst) 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
Herbst v. Herbst, 153 So. 3d 290, 2014 Fla. App. LEXIS 15244, 2014 WL 4851687 (Fla. Ct. App. 2014).

Opinion

SILBERMAN, Judge.

Nicola Herbst, the Former Wife, and Peter Herbst, the Former Husband, entered into a marital settlement agreement (MSA) that provided for nonmodifiable alimony payable to the Former Wife for the remainder of her life. But when the parties divorced and the Former Wife remarried another, the Former Husband moved to have his alimony obligation terminated. The Former Wife seeks review of postdis-solution orders terminating the Former *291 Husband’s alimony obligation, establishing the Former Husband’s overpayment of alimony, and setting off the Former Wife’s attorney’s fee and cost award against that overpayment. We reverse because the MSA unambiguously requires payment continuing beyond the Former Wife’s remarriage and therefore controls over the statutory provision relied on by the trial court.

The parties had been married twenty-two years and had four minor children when the Former Wife filed her petition for dissolution of marriage. In the course of the divorce proceedings, the parties attended mediation conferences and ultimately entered into the MSA. Paragraph 7 of the MSA awarded the Former Wife alimony as follows:

Alimony—

The Petitioner 1 agrees to pay the Respondent alimony in the amount of $4,500 beginning the date of the final judgment and continuing for the life of the Petitioner. The parties agree that this alimony is non-modifiable.

The MSA was incorporated into the final judgment of dissolution which was rendered in August 2009.

The Former Wife remarried in July 2010, and the Former Husband stopped paying her alimony when he learned of the remarriage. The Former Wife subsequently filed a petition to enforce the alimony provision of the MSA. The Former Husband responded by filing a motion to terminate alimony and for return of the alimony he paid after the date of the Former Wife’s remarriage.

The trial court entered an order determining that the alimony provision was ambiguous because it failed to specify whether the alimony (1) was in the nature of support or equitable distribution and (2) continued in the event of the Former Wife’s remarriage. Thus the court ordered that an evidentiary hearing would be held to adduce parol evidence on those issues.

At the onset of the evidentiary hearing, the parties stipulated that any evidence regarding discussions at the mediation conference was confidential and would not be adduced. The Former Wife testified that the parties agreed the Former Husband would pay the Former Wife alimony for her entire life and she could never seek more or get less. The Former Husband testified that his understanding was the alimony would terminate if the Former Wife cohabited or remarried.

The trial court found the parties’ testimony to be “self-serving” and did not consider the parol evidence in ruling on the parties’ motions. Instead, it based its decision on a legal construction of the MSA. The court determined that the alimony was in the nature of spousal support 2 and was intended to be permanent alimony which is governed by section 61.08, Florida Statutes (2011). The court noted that section 61.08(8) provides for the termination of permanent alimony “upon the death of either party or upon the remarriage of the party receiving alimony.” Notwithstanding that the alimony provision specified that the Former Wife would receive non-modifiable alimony for life, the court concluded that the alimony provision did not expressly address termination. The court *292 held that section 61.08(8) therefore applied and entered an order finding that the alimony terminated upon the Former Wife’s remarriage. The court reserved jurisdiction to determine the amount of alimony the Former Husband overpaid.

After another hearing, the court entered an order finding that the Former Husband had overpaid $50,207.42 in alimony. The court also awarded $26,000 in attorney’s fees and costs to the Former Wife. The court ordered the Former Husband to pay $7500 within thirty days and reserved jurisdiction to address payment of the remaining amount. In October 2018, the trial court entered a final order setting off the remaining $18,500 in attorney’s fees and costs against the Former Husband’s award of $50,207.42 for alimony overpayment.

On appeal, the Former Wife argues that the trial court erred by concluding that the alimony terminated upon the Former Wife’s remarriage pursuant to section 61.08(8). The Former Wife asserts that the provision in the MSA obligating the Former Husband to pay nonmodifiable alimony “for the life of [the Former Wife]” controlled. The Former Wife additionally argues that the trial court erred in setting off her attorney’s fee and cost award against the Former Husband’s alimony overpayment.

It is well-settled in dissolution of marriage proceedings that the parties may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes. Taylor v. Lutz, 134 So.Bd 1146, 1148 (Fla. 1st DCA 2014). Thus, if the parties’ MSA requires payment beyond the recipient’s remarriage, the agreement’s terms will control over section 61.08. Id. at 1148; Porter v. Porter, 521 So.2d 290, 291 (Fla. 1st DCA 1988).

We review the trial court’s interpretation of the MSA de novo. See Pipi-tone v. Pipitone, 23 So.3d 131,134 (Fla. 2d DCA 2009). Such agreements are construed the same as any other contract. Taylor, 134 So.3d at 1148. If the terms of the agreement are unambiguous, they are treated as evidence of the parties’ intention and the agreement’s meaning. In construing the terms of the agreement, the court may not isolate a single term' or phrase. Instead, the goal is to come to a reasonable interpretation of the language in the context of the entire agreement. Id.

In this case the MSA unambiguously addresses the circumstances under which alimony may be terminated by obligating the Former Husband to pay alimony “for the life of the [Former Wife]” and by making it nonmodifiable. While this provision does not expressly address remarriage or cohabitation, it implicitly does so by requiring that payments continue in a specified amount until the Former Wife dies. Because this provision requires payment continuing beyond the Former Wife’s remarriage, its terms control over section 61.08(8).

The facts of this case are analogous to those in Porter. In Porter, the parties’ marital settlement agreement provided for alimony for the former wife’s life and stated that it “would ‘terminate only upon the death of wife or remarriage of the parties to each other.’ ” 521 So.2d at 291. When the former wife remarried a man who was not the former husband, the former husband stopped paying alimony. The former wife filed a motion for contempt or for entry of a judgment on the arrearage. The court entered a judgment on the ar-rearage based on its conclusion that the terms of the agreement required the pay *293 ment of alimony beyond the 'wife’s remarriage to a third party.

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Cite This Page — Counsel Stack

Bluebook (online)
153 So. 3d 290, 2014 Fla. App. LEXIS 15244, 2014 WL 4851687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbst-v-herbst-fladistctapp-2014.