Urbanek v. Urbanek

484 So. 2d 597, 11 Fla. L. Weekly 251
CourtDistrict Court of Appeal of Florida
DecidedJanuary 22, 1986
Docket84-1870, 85-183
StatusPublished
Cited by12 cases

This text of 484 So. 2d 597 (Urbanek v. Urbanek) 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
Urbanek v. Urbanek, 484 So. 2d 597, 11 Fla. L. Weekly 251 (Fla. Ct. App. 1986).

Opinion

484 So.2d 597 (1986)

August URBANEK, Appellant/Cross Appellee,
v.
Marilyn URBANEK, Appellee/Cross Appellant.

Nos. 84-1870, 85-183.

District Court of Appeal of Florida, Fourth District.

January 22, 1986.
Motions for Rehearing, Certification and Rehearing Denied March 26, 1986.

*598 James P. O'Flarity of Law Offices of James P. O'Flarity, West Palm Beach, and William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellant/cross appellee.

Larry Klein of Klein & Beranek, P.A., and Metzger & Sonneborn, West Palm Beach, for appellee/cross appellant.

Motions for Rehearing, Certification and Rehearing En Banc Denied March 26, 1986.

HERSEY, Chief Judge.

August Urbanek, former husband, appeals certain aspects of the final judgment dissolving his marriage to Marilyn Urbanek and various post-judgment orders.

Two weeks prior to the marriage of the parties in 1979 they entered into an antenuptial agreement, which is the focus of the principal issues on appeal. At the time of the marriage the husband was a fifty-nine-year-old self-made real estate developer and investor with a net worth of approximately $25,000,000, which had increased to $30,000,000 at the time of final hearing. The wife was a twenty-five-year-old aspiring singer and actress with a net worth of $36,000. In October 1982 the parties adopted a child born in March of that year. In May of 1983 the husband moved out of the marital home and petitioned for dissolution.

At the final hearing evidence was introduced, which was to some extent disputed, that the wife had been diagnosed as having multiple sclerosis and that, in order to provide for her medical care and other necessities during her twenty-year life expectancy, an award having a present money cost of $474,517 would be required.

The antenuptial agreement provided that, in the event of dissolution of the marriage, a lump sum payment would be made to wife, the amount of which would depend upon the length of the marriage. The four-year term of the marriage entitled the wife to a lump sum payment of $250,000.

In the final judgment the trial court found "that the Wife in fact did freely and voluntarily execute the Antenuptial Agreement and that she well understood that such agreement could be enforceable against her by the Husband." Neither party contests this finding. The judge then "approved, confirmed, ratified and incorporated in this Judgment by reference" the antenuptial agreement and ordered the parties to comply with it, subject, however, to certain exceptions. One of those exceptions was a modification of the agreement to provide for an additional lump sum payment to the wife because:

The now diagnosed multiple sclerotic condition of the Wife constitutes a change in circumstances which warrants a modification of the Antenuptial Agreement to the extent that provision shall be made for the Husband to supply sufficient funds for the medical and attendant care and treatment of the Wife reasonably necessary in the treatment of her illness. The Life Care Plan prepared by Rehabilitation Counsel Paul Deutsch, assuming the Wife having a 20-year life expectancy, has a present money value cost of $474,517. The Court determines that the plan and its cost are reasonable. In view of the age and medical history of the Husband as compared to that of the Wife, it is probable that the Wife will outlive the Husband and to ensure that the Wife will receive the necessary medical attention, it is determined that a lump sum payment of $474,517 shall be made by the Husband to the Wife. Said payment shall be in addition to any lump sum payment provided for in the Antenuptial Agreement.

*599 The parties' agreement, which was found valid and enforceable by the trial court, provides for a lump sum award to the wife in a specified amount. The husband contends, on appeal, that the trial court could not increase this award whether on the basis of changed circumstances or for any other reason because the entitlement to such a lump sum payment is a vested right which is not subject to modification. The wife takes the position that Florida law permits modification of any payments to which the parties have agreed, including lump sum, so long as there has been a change in circumstances.

As an aside, we suggest that an increase in the amount awarded wife does not actually modify (in the sense of divesting her of) her entitlement; it simply constitutes an addition to her entitlement. The controverted issue is whether the "obligation to pay" only a fixed, lump sum award is subject to modification by requiring the payment of additional amounts. The cases do not make this distinction clear. We assume, however, in relying on or distinguishing these cases, that reference to "entitlement" necessarily includes its reciprocal, the "obligation to pay." One further aspect that deserves at least passing reference is that we do NOT deem it a legally significant circumstance whether the "modification" is attempted prior to, at the time of, or subsequent to approval of the agreement by the trial court and its incorporation into the final judgment.

Section 61.14(1), Florida Statutes, provides:

Modification of support, maintenance, or alimony agreements or judgments.
(1) When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed or when the child or children who are beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

The trial court relied on this provision to "modify" the antenuptial agreement, in effect holding that the statute authorizes modification of lump sum alimony. The cases uniformly hold to the contrary. The rule that emerges from consideration of this issue is that a provision for a lump sum payment, whether by agreement of the parties or by court order, is not subject to modification pursuant to section 61.14. Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976). See also Philipose v. Philipose, 431 So.2d 698 (Fla. 2d DCA 1983) (Since lump sum alimony involves payment of a fixed amount, it is a vested right and, as such, is not subject to modification, even under section 61.14, Florida Statutes). As this court explained in Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979):

We agree with the language of Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958),

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Garvey v. Garvey
138 So. 3d 1115 (District Court of Appeal of Florida, 2014)
Johnson v. Johnson
946 So. 2d 1132 (District Court of Appeal of Florida, 2006)
Lashkajani v. Lashkajani
911 So. 2d 1154 (Supreme Court of Florida, 2005)
Langley v. Langley
613 S.E.2d 614 (Supreme Court of Georgia, 2005)
Trowbridge v. Trowbridge
674 So. 2d 928 (District Court of Appeal of Florida, 1996)
Rico-Perez v. Rico-Perez
664 So. 2d 298 (District Court of Appeal of Florida, 1995)
Osborne v. Osborne
604 So. 2d 858 (District Court of Appeal of Florida, 1992)
Lawhon v. Lawhon
583 So. 2d 776 (District Court of Appeal of Florida, 1991)
Brandt v. Brandt
561 So. 2d 1353 (District Court of Appeal of Florida, 1990)
Fechtel v. Fechtel
556 So. 2d 520 (District Court of Appeal of Florida, 1990)
Lewis v. Lewis
528 So. 2d 93 (District Court of Appeal of Florida, 1988)
Matusow v. Matusow
498 So. 2d 462 (District Court of Appeal of Florida, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
484 So. 2d 597, 11 Fla. L. Weekly 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/urbanek-v-urbanek-fladistctapp-1986.