Pipitone v. Pipitone

23 So. 3d 131, 2009 WL 2634085
District Court of Appeal of Florida·Decided August 28, 2009·No. 2D08-5032·Published·Cited by 13 cases

Opinion

23 So.3d 131 (2009)

Christine Rose PIPITONE, n/k/a Christine Diaz, Appellant,
v.
Charles Anthony PIPITONE, Appellee.

No. 2D08-5032.

District Court of Appeal of Florida, Second District.

August 28, 2009.

*133 Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellant.

Antonio J. Perez-Benitoa of Antonio J. Perez-Benitoa, P.A., Naples, for Appellee.

*134 LaROSE, Judge.

Christine Diaz, f/k/a Christine Pipitone, appeals a postjudgment order denying her motion to enforce the final judgment of dissolution of marriage to Charles Pipitone, and the incorporated marital settlement agreement (MSA). The trial court erroneously ruled that the MSA provides the exclusive means available to enforce payment of lump sum alimony. We reverse.

We review the interpretation of the MSA de novo. See Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003). As relevant here, the MSA provides as follows:

VI. ALIMONY.
As and for non-modifiable lump sum alimony, the Husband shall pay to the Wife the sum of $100,000.00 at the rate of $2,083.33 per month for forty-eight (48) months. Said payment shall commence on May 15, 2006, and shall continue to be paid on the 1st day of each month thereafter for the next forty-seven (47) consecutive months. Time is and shall be of the essence regarding the delivery of these payments. Said alimony payment is taxable to the Wife and deductible by the Husband for Federal Income Tax purposes.
As and for additional non-modifiable lump sum alimony, the Husband shall pay to the Wife the sum of $75,000.00 at the rate of $1,100.00 per month for sixty-eight plus (68 + ) months. Said payment shall commence on May 15, 2006, and shall continue to be paid on the 1st day of each month thereafter for the next sixty-seven (67) months, plus a final partial payment thereafter, until paid in full. Said alimony payment is taxable to the Wife and deductible by the Husband for Federal Income Tax purposes. The parties specifically agree that this lump sum alimony amount is in consideration for the Husband's one-half (1/2) obligation on the Home Equity Line of Credit, for which the Wife is taking full responsibility hereunder, attendant to the marital residence located at 152 Leland Way, Marco Island, Florida.
All alimony payments required herein shall be made through the Court Registry System.
By use of the term "non-modifiable" herein, the Husband acknowledges there are no circumstances which will provide him an excuse not to pay these sums to the Wife. If she dies, he shall pay her Estate; if he dies, his Estate shall pay her; and if she remarries or cohabitates in a marriage-like relationship, he still shall be obligated to pay the alimony described hereinabove. The Wife acknowledges there are no circumstances under which she may seek a higher monthly payment or a payout for a longer duration.
The Wife may secure these alimony obligations by placing a lien against the non-real estate assets (including all equipment and inventory, but excluding cash receivables) owned by Marco Cabinets, Inc. Any and all expenses attendant to this lien(s) shall be borne by the Wife.
. . . .
XX. CHILD SUPPORT, DAY CARE & HEALTH INSURANCE.
The parties have each filed Financial Affidavits with the Court and the parties agree that the Husband shall pay to the Wife the sum of $450.00 per child, per month, for a total of $1,800 per month, beginning May 1, 2006. Said amount shall be paid and delivered to the Wife no later than the 15th day of each month, until such time as the children reach the age of majority, become emancipated, die or graduate high school, *135 whichever occurs later. Said payments shall be paid directly to the Wife. Time is and shall be of the essence with respect to these payments.

(Emphasis added.)

Mr. Pipitone is in arrears. Thus, Ms. Diaz asked the trial court to compel payment, to hold Mr. Pipitone in contempt, to award her "other such relief as is proper," and to award her attorney's fees. In denying relief, the trial court ruled that the MSA "provides the Former Wife with the exclusive remedy regarding enforcement of lump sum alimony." Ms. Diaz argues that the lien provision of the MSA is not her exclusive remedy; she should be allowed to pursue other remedies such as a money judgment and contempt. Mr. Pipitone agrees that the trial court erred in concluding that the MSA provides the exclusive remedy. He argues, however, that contempt is not an available remedy.

Exclusivity of Lien Remedy

The MSA provides that Ms. Diaz may secure her alimony payments through a lien against various non-real estate assets of Mr. Pipitone's business. Apparently, she did not do so. Had she pursued a lien, Ms. Diaz could have foreclosed to recover the arrearages. See Black v. Miller, 219 So.2d 106, 109 (Fla. 3d DCA 1969) (stating foreclosure on security lien was available remedy to collect past due alimony); cf. Partridge v. Partridge, 912 So.2d 649, 650 (Fla. 4th DCA 2005) (holding contempt justified foreclosure on equitable lien on former husband's property claimed as homestead). But, she was not obligated to pursue this remedy.

In the MSA, Ms. Diaz and Mr. Pipitone chose the word "may," not words of exclusivity such as "shall," "must," or "may only." See, e.g., Granados Quinones v. Swiss Bank Corp., S.A., 509 So.2d 273 (Fla.1987) (contrasting permissive contract language using "may" with mandatory language using "shall" or "may only"); Am. Boxing & Athletic Ass'n, Inc. v. Young, 911 So.2d 862, 865 (Fla. 2d DCA 2005) (contrasting "may" with "must" and "shall"); cf. Regal Kitchens, Inc. v. O'Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005) (holding provisions that a party "may" choose a particular venue to enforce a contractual right are not exclusive). Their agreement established a way that Ms. Diaz could ensure alimony payment. The lien remedy, therefore, is not exclusive. See id. at 291-92. The trial court erred in ruling to the contrary. We must, therefore, reverse and remand for further proceedings. Because lump sum alimony can pose seemingly insoluble problems in the context of enforcement proceedings,[1] we offer further guidance to the trial court.

The MSA provides two nonmodifiable amounts of lump sum alimony payable in monthly installments. For federal income tax purposes, the payments are income to Ms. Diaz and deductions to Mr. Pipitone. The $75,000 amount is consideration for Ms. Diaz's assumption of Mr. Pipitone's credit line obligation. This amount reflects an equitable distribution of property; contempt is not a remedy available for nonpayment. See Cone v. Gillson, 861 *136 So.2d 1210, 1210 (Fla. 2d DCA 2003). Ms. Diaz agrees. The MSA, however, does not characterize the $100,000 amount. Ms. Diaz contends that it is for support, and that contempt is an available remedy for nonpayment. See Bongiorno v. Yule, 920 So.2d 1209, 1210 (Fla. 1st DCA 2006) (holding that lump sum alimony is enforceable by contempt if intended for support rather than property settlement).

Equitable Distribution or Support

Lump sum alimony may provide for equitable distribution of property or for support. Miulli v.

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