Schreiber v. Schreiber

795 So. 2d 1054, 2001 WL 1093049
CourtDistrict Court of Appeal of Florida
DecidedSeptember 19, 2001
Docket4D00-4520
StatusPublished
Cited by6 cases

This text of 795 So. 2d 1054 (Schreiber v. Schreiber) 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
Schreiber v. Schreiber, 795 So. 2d 1054, 2001 WL 1093049 (Fla. Ct. App. 2001).

Opinion

795 So.2d 1054 (2001)

Kenneth M. SCHREIBER, Appellant,
v.
Linda SCHREIBER, Appellee.

No. 4D00-4520.

District Court of Appeal of Florida, Fourth District.

September 19, 2001.

*1055 Robert W. Murphy, Fort Lauderdale, for appellant.

Jonathan S. Root and Joseph Heimovics of Graner Root & Libow, P.A., Boca Raton, for appellee.

OWEN, WILLIAM C., JR., Senior Judge.

The final judgment dissolving the Schreibers' 20 year marriage incorporated the parties' Marital Settlement Agreement (MSA), the provisions of which imposed patently unfair and unreasonable financial obligations on appellant, the former husband. Prior to final hearing, appellant sought unsuccessfully to have the trial court vacate or modify the MSA's periodic alimony provisions.[1] On this appeal from the final judgment, appellant raises several issues, the principal one of which is whether the trial court erred in enforcing the MSA without modification. We affirm, concluding that the trial court, in denying appellant's motion to vacate or modify the periodic alimony provisions of the MSA, properly followed the principles established by Casto v. Casto, 508 So.2d 330 (Fla.1987).

Shortly after the parties separated, Mrs. Schreiber, the former wife, appellee, consulted an attorney. The attorney prepared the MSA and appellee took it to appellant for his signature. She informed *1056 appellant that she had an attorney draft the legal paperwork to end their marriage, and that she needed appellant to look at the proposed agreement and to sign it because "it would be financially more expensive to go through this in the courts, and this is what the law was anyway, so let's just do this and get it over with." Appellant took the MSA home, presumably to have time to review it. A week later, without consulting an attorney, he signed the MSA but only after he had expressed to appellee his concern that he was not going to be able to live with the kind of money she wanted him to pay her, and she, in response, had assured him that she would not hold him to the agreement.

The financial provisions of the MSA can be summarized briefly: Appellee was to receive the following: (1) as lump sum alimony, all of their marital assets which (including the marital home) had a total equity value of $106,000; (2) as permanent periodic alimony, $1,000 per month until the appellant's child support obligation ceased, and thereafter $2,000 per month; (3) as undifferentiated child support for the parties' two minor children, ages 17 and 13, respectively, $1,500 per month, to continue until the younger died, reached age 18 or married, whichever was first to occur; and (4) title to the 1995 Ford Windstar. Appellant was allowed to keep his tools and was to receive title to a 1998 Ford Ranger on which there were payments of $400 a month. In addition to appellant's obligations for periodic alimony and child support payments, he was required to assume $1,900 of the parties' $2,000 in credit card debts, to continue the medical and dental insurance on the children and to pay any of their medical and dental expense not covered by the insurance.

The parties' respective financial affidavits showed appellant's net monthly income to be $3,380, and appellee's to be $1,326. Consequently, if appellant were to meet all of his monthly obligations under the MSA as listed above, he would be left with approximately $105 a month for his living expenses while appellee would have approximately $3,826 for her own and the children's living expenses. To top it off, appellant, stripped of substantially all assets and rendered impecunious by the monthly obligations imposed by the MSA, was also required to pay $2,000 of appellee's attorney's fees.[2]

Casto sets out the two permissible grounds by which a spouse may seek an order vacating or modifying a postnuptial agreement in a dissolution proceeding. The first is by establishing that the agreement was reached by means of fraud, deceit, duress, coercion, misrepresentation, or overreaching. The second contains multiple elements, but the threshold requirement is the necessity of establishing that the agreement makes an unfair or unreasonable provision for the challenging spouse, given the circumstances of the parties. Appellant's motion to vacate or modify the periodic alimony provisions of the MSA was based on both grounds, i.e., that the MSA was the product of appellee's overreaching and that the MSA made unfair or unreasonable financial provisions for him. He argues both grounds here, as well.

As to the first ground, appellant argues that the MSA was the product of appellee's overreaching and that such overreaching rendered the agreement unconscionable and impossible to perform. In support of that argument, he cites to the cases of Tenneboe v. Tenneboe, 558 So.2d 470 (Fla. 4th DCA 1990), Torres v. *1057 Lincheta, 744 So.2d 1193 (Fla. 3d DCA 1999), Moss-Jacober v. Moss, 334 So.2d 89 (Fla. 3d DCA 1976), and McGregor v. McGregor, 447 So.2d 994 (Fla. 4th DCA 1984). The problem we find with that argument is the lack of competent evidence that the MSA was the product of overreaching on appellee's part. It definitely was one-sided and unfair. But, that alone, no matter how egregious, does not translate into overreaching absent a sufficient showing that the MSA resulted from an inequality of bargaining power or other circumstances such that there was no meaningful choice on the part of the disadvantaged party.[3] Basically, overreaching involves the situation where one party, having the ability to force the other into an unfair agreement, does so. The court found that there was no overreaching on the part of appellee and that appellant freely and voluntarily signed the MSA. There is competent substantial evidence in the record to support both findings and we will not disturb those findings.

As to the second ground, appellant correctly argues that the MSA made unfair or unreasonable financial provisions for him. Although the trial court did not make an express finding to that effect, the court repeatedly expressed its concern that the agreement was unfair,[4] leaving no doubt that such was the court's finding. We have no hesitancy in declaring that the MSA was unfair or unreasonable on its face, given the circumstances of the parties, and we venture that no objective view of the financial provisions of the MSA would permit any finding to the contrary.

The unreasonableness of the MSA in this case having been established, a presumption arose of either concealment by the appellee, or a presumed lack of knowledge by the appellant, of appellee's finances at the time the agreement was reached. The burden then shifted to the appellee to rebut these presumptions. See Casto, 508 So.2d at 333. Appellant argues that appellee could not have rebutted these presumptions because she never presented evidence on these issues.[5] That argument is without merit because it ignores the fact that evidence sufficient to rebut these presumptions came in during appellant's own presentation, both on cross-examination of appellant and on direct examination of appellee, whom appellant called as an adverse party.

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Bluebook (online)
795 So. 2d 1054, 2001 WL 1093049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schreiber-v-schreiber-fladistctapp-2001.