Toussaint v. Toussaint

107 So. 3d 474, 2013 WL 264190, 2013 Fla. App. LEXIS 998
CourtDistrict Court of Appeal of Florida
DecidedJanuary 24, 2013
DocketNo. 1D11-5908
StatusPublished
Cited by5 cases

This text of 107 So. 3d 474 (Toussaint v. Toussaint) 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
Toussaint v. Toussaint, 107 So. 3d 474, 2013 WL 264190, 2013 Fla. App. LEXIS 998 (Fla. Ct. App. 2013).

Opinion

VAN NORTWICK, J.

In the case under review, we are required to interpret the provisions of a marital settlement agreement (MSA) which apportioned the military retirement benefits of Henry Toussaint, the former husband, appellee. Norma Toussaint, the former wife, appeals a final order interpreting the subject provision of the MSA, described by the trial court as unambiguous, to limit the portion of the military retirement pay of appellee payable to the former wife to 50% of the retirement benefits that accrued during the marriage. Although the former wife agrees that the subject provision is unambiguous, she argues that the equitable distribution provision grants to her 50% of the full military retirement payable to the former husband. For the reasons [476]*476explained below, we hold that the pertinent provisions of the MSA are ambiguous and that the trial court erred in not taking parol evidence to elucidate the ambiguity. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

The parties obtained a Final Judgment of Dissolution of Marriage (Final Judgment) on May 3, 1999. The Final Judgment incorporated the MSA, which, in paragraph XV, apportioned the former husband’s military retirement benefits, as follows:

As an equitable distribution of marital property, not an award of alimony, the Respondent/Husband shall pay or cause to be paid, to the Petitioner/Wife, as a property right from the Respondent/Husband’s United States Air Force retirement pay fifty percent (50%) of the Respondent/Husband’s net retirement pay. The Petitioner/Wife’s right to receive the payments described herein, shall terminate immediately upon the Petitioner/Wife’s death.

Additionally, in paragraph XII of the MSA, the parties waived “any and all claims to any right, title, and interest in the non-marital property of the other except as specifically agreed to” in the MSA.

On April 5, 2011, the former husband filed a motion seeking clarification of the Final Judgment and MSA and entry of an enforcement order. The former husband argued that the MSA should be construed so that the former wife was entitled only to 50% of his military retirement benefits that accrued during the marriage. The matter was referred to a general magistrate, who held a hearing on the former husband’s motion. Both parties were represented by counsel and were either physically or telephonieally present.

At the hearing, both parties were sworn under oath and the former husband’s attorney began examination of the former husband. The former husband testified that, at the time of the dissolution of the marriage, he held the rank of major and had been on active duty in the military for sixteen years and five months. According to his testimony, he ultimately retired from the military as a colonel on January 31, 2011, with slightly over 28 years of service. Before the examination could proceed any further, however, the former wife’s counsel objected to the questioning, asserting that it was an attempt to introduce parol evidence concerning a clear and unambiguous portion of the MSA. The general magistrate reserved ruling on the objection to hear argument from the parties on the issue of whether parol evidence was admissible in this proceeding.1 Following argument by counsel for both parties, the general magistrate sustained the former wife’s objection and prohibited the introduction of parol evidence.

The general magistrate filed a report and recommended order denying the former husband’s motion for clarification and an enforcement order. In the report, the general magistrate found that a plain reading of paragraph XV of the MSA created a property right in the former wife for 50% of the former husband’s full military retirement benefits. The general magistrate explained that, had the parties intended to limit the former wife’s share of the former husband’s military retirement benefits solely to those accruing during the marriage, they could have included such language in the MSA. The magistrate also [477]*477found that the subject provision of the MSA was not ambiguous and, as a result, parol evidence would not be admissible as to the parties’ intent in drafting this provision. The general magistrate considered the former husband’s motion to be, in effect, a motion to modify a property settlement, which is prohibited under Florida law. See Salomon v. Salomon, 196 So.2d 111, 112-13 (Fla.1967).

The former husband filed an exception to the general magistrate’s report and a hearing was held on the exception in the circuit court. Both parties were present telephonically and represented by the same counsel who appeared before the general magistrate. After hearing opposing arguments, the trial court informed the parties that they could submit proposed orders, including findings of fact.

In its final order, the trial court ruled that the general magistrate’s report and recommendation was contrary to the law and evidence. The trial court found that paragraph XV of the MSA was unambiguous. The trial court ruled that the general magistrate was thus correct in stating that parol evidence is not permitted to alter the terms of the MSA, but was incorrect in disallowing parol evidence to clarify and enforce the correct amount of creditable time used in calculating the former wife’s portion of the former husband’s retirement benefits. The trial court read paragraph XV as creating in the former wife a property right to only 50% of the former husband’s retirement benefits as a division of marital property. Because the MSA includes a specific waiver of each parties’ claims to the others’ non-marital property, the trial court concluded that the former wife was entitled only to 50% of the former husband’s retirement benefits that accrued during the marriage. The court rejected the general magistrate’s contrary interpretation and ruled that, under a plain reading of the MSA in light of Florida law, the former wife was required to include specific language in the MSA to allow her to have access to the former husband’s retirement benefits accumulated after the dissolution. The trial court denied a motion for rehearing and the former wife timely appealed the final order to this Court.

Resolution of this case involves interpretation of an MSA incorporated into a Final Judgment Dissolution of Marriage. We have previously held that “[ijnterpretation of a marital settlement agreement as with a contract is a matter of law putting the appellate court on equal footing with the trial court as interpreter of the written document.” Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002) (quoting Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996)). Therefore, the standard of review for the trial court’s ruling on the MSA is de novo.

We have also determined- that, “[a]s a general rule, evidence outside the contract language, which is known as parol evidence, may be considered only when the contract language contains a latent ambiguity.” Duval Motors Co. v. Rogers, 73 So.3d 261, 265 (Fla. 1st DCA 2011). A latent ambiguity arises “where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Id. at 265 n. 2 (quoting Barnwell v. Miami-Dade County Sch. Bd., 48 So.3d 144, 145-46 (Fla. 1st DCA 2010)). Finally, “parol evidence is admissible to explain, clarify or elucidate the ambiguous term.” Strama v.

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Cite This Page — Counsel Stack

Bluebook (online)
107 So. 3d 474, 2013 WL 264190, 2013 Fla. App. LEXIS 998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toussaint-v-toussaint-fladistctapp-2013.