LISA MICHELE DILLS F/K/A LISA PEREZ

v.

WAYNE PEREZ

COHEN, J.

In this alimony action, Lisa Dills (“Former Wife”) appeals the trial court’s denial of her motion for exceptions to the general magistrate’s report and recommendations. Because the trial court erred in its interpretation of “nonmodifiable” when describing durational alimony in a marital settlement agreement (“MSA”), we reverse.

Attendant to the parties’ marital dissolution, Former Wife and Wayne Perez (“Former Husband”) entered into an MSA that included a provision requiring Former Husband to pay non-modifiable durational alimony to Former Wife for 48 months. When Former Wife remarried prior to the expiration of that period, Former Husband filed a notice of termination of alimony per the governing statute, 1 and Former Wife responded with a motion for, inter alia, contempt and compliance. The matter was referred to a general magistrate, who concluded that inclusion of “non-modifiable” in the MSA to describe durational alimony was insufficient to prohibit termination by remarriage, particularly when the MSA was silent on remarriage but included a provision overcoming the statutory termination of alimony upon Former Husband’s death.

The trial court approved the general magistrate’s report and recommendations and terminated Former Husband’s alimony obligation. This appeal followed.

Section 61.08(7) mandates that an award of durational alimony terminates upon the death of either party or upon remarriage of the party receiving alimony.

However, it is axiomatic that parties to a marital 1 § 61.08(7), Fla. Stat. (2017). 2 dissolution are free to enter into contractual agreements that include provisions no court of law could impose. 2 See Brunsman v. Brunsman, 232 So. 3d 1175, 1177 (Fla. 5th DCA 2017) (“Absent agreement between the parties or findings of exceptional circumstances, . . . imposing a nonmodifiable alimony requirement is error.”); Vargas v. Vargas, 654 So. 2d 963, 964 (Fla. 5th DCA 1995). Still, a provision in an MSA will only overcome the contradictory applicable statute if the contractual terms are clear and unambiguous, in which case the plain meaning of the express terms will prevail. See Schmachtenberg v. Schmachtenberg, 34 So. 3d 28, 33 (Fla. 3d DCA 2010).

Therefore, the sole issue in this case is whether the parties’ insertion of “non-modifiable” to describe a durational alimony award in their MSA operates as clear and unambiguous language sufficient to overcome the statutory termination of alimony upon the recipient’s remarriage.

We have not previously ruled on this issue, but our sister district courts have done so in the context of non-modifiable bridge-the-gap alimony and permanent alimony. See Taylor v. Lutz, 134 So. 3d 1146 (Fla. 1st DCA 2014) (bridge-the-gap alimony); Herbst v. Herbst, 153 So. 3d 290 (Fla. 2d DCA 2014) (permanent alimony). In both situations, the courts found that the 2 Of course, there are limits to such contractual provisions, particularly if they are not in the best interests of children or violate public policy. 3 express inclusion of “non-modifiable” in the parties’ MSAs prohibited the termination of alimony upon remarriage. Taylor, 134 So. 3d at 1148–49;

Herbst, 153 So. 3d at 293. We agree with those results, and to the extent that the nature of the alimony award is relevant, find the reasoning of Taylor and Herbst applies equally to bridge-the-gap, permanent, and durational alimony awards in MSAs.3 The possibility that an ex-spouse might remarry is not an unforeseen or uncommon occurrence, which the legislature certainly contemplated by including that contingency in the statute at issue. See § 61.08(7), Fla. Stat. The parties in this case should have contemplated it also. Notwithstanding, they entered into a contract designating the alimony as non-modifiable and are bound by the plain meaning of that language.

Therefore, because the clear and unambiguous language of the parties’ MSA controls over the statute, we “must treat the written instrument as evidence of the agreement’s meaning and the parties’ intention.” Taylor, 134 So. 3d at 1148 (citations omitted). “To do otherwise would most certainly vault form over substance.” Id. (citing Underwood v. Underwood, 64 So. 2d 3 Former Husband’s reliance upon O’Malley v. Pan American Bank of Orlando, N.A., 384 So. 2d 1258 (Fla. 1980), is misplaced, because that case concerns neither remarriage nor the effect of “non-modifiable” upon alimony, as the Second District made clear in Herbst. See Herbst, 153 So. 3d at 293. 4 281, 288 (Fla. 1953)).

Accordingly, we hold that Former Husband’s obligation to pay Former Wife durational alimony for 48 months did not terminate upon Former Wife’s remarriage and, as a result, the trial court erred by failing to order enforcement of the MSA’s alimony provision.

REVERSED.

LAMBERT, C.J., and SASSO, J., concur. 5