Mulhern v. Mulhern
This text of 446 So. 2d 1124 (Mulhern v. Mulhern) 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.
Opinion
Donna MULHERN, Appellant,
v.
Russell J. MULHERN, Appellee.
District Court of Appeal of Florida, Fourth District.
Alan S. Fishman of Scherer, Fishman & Carlton, Fort Lauderdale, for appellant.
R.E. Conner, Plantation, for appellee.
WALDEN, Judge.
This is an appeal from a dissolution of marriage judgment. It involves the interpretation and application of an ante nuptial agreement. Appellant is the former wife and appellee is the former husband.
The agreement, prepared by the husband's attorney, materially provided:
1. A waiver of attorneys fees and costs by the wife.
2. All such obligations of and payments by HUSBAND shall terminate conclusively and forever upon the first occurrence of the death or the remarriage of WIFE or her residing with *1125 an adult male other than a blood relative. (emphasis supplied)
The trial court did two things which form the focal points of this appeal:
1. In a post judgment proceeding the wife's application for attorney fees was denied in toto based solely upon the waiver found in the agreement.
2. In the final judgment it was found:
7. The parties are in agreement that the intention of the alimony provision contained in the aforementioned agreement is that any payment to be pro-rated to provide only for the period of time between the parties separation and residency by the wife with a male not a blood relative.
And adjudged:
5. The Husband, pursuant to the terms of the ante Nuptial Agreement, shall pay to the Wife the sum of $8,726.60, which represents 106 days from the date of the separation of the parties until the date the Wife commenced residency with a male other than a blood relative.
Denial of Attorneys Fees
We hold that the denial of attorney fees based solely on the agreement waiver was reversible error. In our opinion the trial court should have adjudicated the issue, without bar of the agreement, considering all the usual pertinent criteria such as the respective financial circumstances of the parties, that is to say, the need of the wife and the ability of the husband to pay. It is basic that the purpose of awarding attorney fees is to place the spouses on a financial parity for the prosecution or defense of the dissolution action.
As we understand it, the rule in Florida as provided by Belcher v. Belcher, 271 So.2d 7 (Fla. 1972) is that, regardless of a waiver or limitation provided in a marital contract, a husband's obligation of support, to include his obligation to pay attorney fees, suit money, and costs continues while the parties are still married, that is to say, until the moment the marriage is actually dissolved by final judgment. Of course, the agreement may be considered in the event it provides other financial support or assets to the wife pendente lite insofar as it may bear on the equation of the wife's need vs. the husband's ability.
More specifically, Belcher v. Belcher, supra, at page 9 provides:
For temporary support, suit money and temporary attorney's fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife. Contracts are made in legal contemplation of existing, applicable statutes and so it is that marriage contracts and any ante or post-nuptial contracts are entered into subject to then existing law, including the law of this state that makes a husband responsible for the support of his wife while she is married to him.
Continuing, the application for such fees may be made before or after judgment so long as the claim and award are limited to services rendered prior to entry of judgment. We believe that the only distinction between a pre-judgment application could be that, if the agreement is adopted and it provides assets or income to the party movant, an application post judgment may present a different financial picture. When the application is made pre-judgment it will not be known if the agreement will be approved and hence any post judgment provision for the movant cannot be considered in an assessment of the respective finances.
We reverse the order denying attorney fees upon the authority of Belcher v. Belcher, supra, and Young v. Young, 322 So.2d 594 (Fla. 4th DCA 1975) and remand for further proceedings consistent herewith.
Termination of Husband's Obligations By Reason of The Wife's Residency With a Male Other Than a Blood Relative.
As a preliminary, we would have been disposed to hold from the whole language *1126 of the agreement and our construction of it that such habitation prior to final judgment and adoption of the agreement would be of no moment. However, the parties, according to the court's recital, agreed that the agreement would be operable beginning with the separation of the parties, and here the parties have not contended otherwise. Thus, we use that time frame and look only to see if the wife did reside post separation with an adult male other than a blood relative within the contemplation of the agreement.
We pause to note, since we did not choose to incorporate here the whole agreement, that the agreement did not provide definitions, guidelines, criteria or any other specific insight as to what the parties intended by the words "residing with" an adult male other than a blood relative.
We have examined all the testimony on this issue and at most, in support of the judgment, it appears that the Wife spent the night, or a part of a night, at Mr. Salerno's apartment somewhere between five and thirteen times following separation and prior to final judgment. The separation took place around September 17, 1981, and the judgment was entered on June 24, 1982. The Wife testified that she stopped seeing Mr. Salerno on January 22, 1982, and there is no counter indication in the record. The final hearing took place in June of 1982.
The Wife had an apartment following separation, which had no relationship to or with Mr. Salerno, where she and her son resided. There is no testimony, with reference to the Salerno apartment, that the Wife kept her clothing there, other than the possibility that she changed into an evening gown there on New Year's Eve. There is no testimony that she ate or prepared meals there. There is no testimony that she maintained a telephone or mail listing there. There is no testimony of any other use or intendment on the part of the Wife normally considered as indicia or criteria in determining residence or where a person resides.
An ante-nuptial agreement does not differ from other agreements and it should be construed and interpreted in the same manner as other contracts. Vance v. Vance, 143 Fla. 513, 197 So. 128 (1940); Bergman v. Bergman, 145 Fla. 10, 199 So. 920, as modified (1940); Underwood v. Underwood, 64 So.2d 281 (Fla. 1953); Sosnowitz v. Sosnowitz, 342 So.2d 524 (Fla. 3d DCA 1977), cert. denied 352 So.2d 174 (Fla. 1977). Moreover, the applicable standard of contract interpretation is one which is realistic, based upon the contract's plain meaning, unless the context of the contract demonstrates the parties' intention that a different meaning be given. Bergman v. Bergman, supra.
A myriad of cases have been suggested and found which deal with residing.
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