PEGGY SPEEDMAN LEVITZ, APPELLANT,
v.
RALPH LEVITZ, APPELLEE

Fla. 4th DCA | 1986-02-05
No. 84-2753
LEVY, DAVID, Associate Judge, concurs., HURLEY, J., concurs specially with opinion.
481 So. 2d 1319 Florida District Court of Appeal, Fourth District (1986)

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Synopsis

In this divorce case involving an antenuptial agreement with escalating cash benefits based on marriage duration, the court reversed the trial judge's interpretation that the filing date of a dissolution petition controlled the payout calculation, holding instead that the actual date of dissolution governs the amount owed to the wife under the agreement's plain language.


Holding

The actual date of dissolution, not the filing date of the dissolution petition, controls the calculation of the wife's cash award under the agreement. Paragraph four of the agreement clearly contemplates the actual dissolution date to determine the relative property and cash awards, as evidenced by the language stating 'if the marriage lasts,' and a marriage 'lasts' until dissolution under Florida law.


Headnotes

[1] An antenuptial agreement's provisions for calculating cash awards upon dissolution are governed by the paragraph specifically addressing payout calculations, not the para…

[2] A marriage is legally considered to 'last' until the date of dissolution, not the date of filing a petition for dissolution.

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Key Quotes

“we do not agree that the filing date for dissolution controls the amount of the pay out. Paragraph four of the same agreement, not considered by the trial judge in his order, is the one that clearly intends to control the calculation of the pay out.”

Establishes the core holding that the dissolution date, not filing date, controls the payout calculation under paragraph four.

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Facts & Procedural History

An elderly, wealthy furniture magnate and his much younger wife divorced after less than three years of marriage. Their antenuptial agreement provided…

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Opinion of the Court
LETTS, Judge.

LETTS, Judge.

The Motion for Rehearing is granted. The original opinion filed November 27, 1985, is withdrawn and we substitute the following:

The original trial judge concluded (and his successor adopted that conclusion) that the language employed in an antenuptial agreement called for the actual filing date of a petition for dissolution as the moment from which to calculate the cash amount of the benefits to the wife under the agreement. We disagree and reverse.

This appeal evolves from the divorce of an elderly, wealthy furniture magnate after less than three years of marriage from his much younger wife. Under the antenuptial agreement, the cash award increased for every year of the marriage. In reaching his conclusion, the trial judge only took into consideration paragraph three of the agreement which provided that in the event of any filing of a dissolution petition, the antenuptial agreement would govern and preempt all other rights to “property, alimony, temporary support, permanent support, lump sum alimony, property settlement or costs.”

We agree that the filing would trigger the implementation of the provisions in the agreement to the exclusion of any other possible, but not provided for, awards in favor of the wife. However, we do not agree that the filing date for dissolution controls the amount of the pay out. Paragraph four of the same agreement, not considered by the trial judge in his order, is the one that clearly intends to control the calculation of the pay out. Repeatedly, the language of this latter paragraph unequivocally'fixes the date of the actual dissolution to determine the relative property and cash awards. Furthermore, another sentence in that same paragraph employs the phrase “if the marriage lasts.” The law in Florida is clear that while connubial bliss obviously terminates upon the filing (if not before), a marriage “lasts” until dissolution. See Kennedy v. Kennedy, 101 Fla. 239, 134 So. 201 (1931); Sahler v. Sahler, 154 Fla. 206, 17 So. 2d 105 (1944).

Even assuming that the two paragraphs at a minimum create ambiguity (an assumption with which we do not agree) any such should be construed against the husband.1 He drafted the agreement, Capital City Bank v. Hilson, 59 Fla. 215, 51 So. 853 (1910), and, regardless of authorship, the later paragraph should control. Cf. Flowers v. Miskoff 233 So. 2d 201 (Fla. 4th DCA 1970), cert. denied, 238 So. 2d 106 (Fla.1970); Suncoast Bldg. of St. Petersburg, Inc. v. Russell, 105 So. 2d 809 (Fla. 2d DCA 1958).

We find no other error in the trial judge’s orders appealed from and have no quarrel with the conclusion that the wife is not entitled to a $150,000 Rolls Royce. She will just have to be content with her Cadillac, gifts of jewelry in excess of $150,000 and the $700,000 in cash bestowed on her by the agreement. Accordingly, we reverse and remand for the entry of a judgment in accordance herewith.

REVERSED AND REMANDED.

LEVY, DAVID, Associate Judge, concurs.

HURLEY, J., concurs specially with opinion.

. The husband, as does this panel, likewise believes there is no ambiguity. However, unlike this panel, he insists that paragraph three of the agreement subsumes paragraph four thereof.

Concurrence
HURLEY, Judge,

HURLEY, Judge,

concurring specially.

I fully agree with this court’s interpretation of the antenuptial agreement. Also, I agree that the trial court should be affirmed with respect to the Rolls Royce. I would only add that this court cannot entertain the wife’s contention that she is entitled to enforce the purchase contract as a third-party beneficiary who accepted or assented to the contract. See generally Joseph Bucheck Construction Corp. v. Music, 420 So. 2d 410, 414 n. 4 (Fla. 1st DCA 1982), review denied, 429 So. 2d 6 (Fla.1983); Restatement (Second) of Contracts § 311(3) (1981). The wife failed to advance this theory in the trial court and, thus, she is precluded from raising it on appeal. See Steinhorst v. State, 412 So. 2d 332 (Fla.1982).


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