DONNA S. PARKER, APPELLANT,
v.
DONALD D. PARKER, APPELLEE
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In this family law appeal, the First District Court of Appeal reversed a summary judgment that had denied Donna Parker's request to modify a separation agreement, finding the trial court misinterpreted a no-oral-modification clause to require written consent before any modification could be granted.
The court held that paragraph 13(d) merely requires modifications to be in writing to prevent oral modification, but does not require the other party's written consent before a court may order modification. The court also held that the trial court must examine whether paragraph 5 is a true property settlement (non-modifiable) or alimony/support (modifiable) by considering the plain language, surrounding circumstances, and parties' purpose.
[1] A separation agreement's clause requiring modifications to be in writing and executed with the same formality as the agreement is intended to prevent oral modifications,…
[2] A court may modify provisions for alimony or support within a separation agreement, but not those that are part of a true property settlement.
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Join FLexlaw to unlock all legal intelligence“No modifications of any of the terms shall be valid unless in writing and executed by the same formality as this agreement.”
The language from paragraph 13(d) of the separation agreement that the trial court had misinterpreted as requiring written consent to modification.
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Join FLexlaw to unlock all legal intelligenceThe parties had executed a separation agreement containing paragraph 13(d), which stated that no modifications of the agreement's terms could be valid…
The full statement of facts, procedural history, and disposition for this case are member content.
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SMITH, Chief Judge.
Appellant appeals a summary final judgment refusing to modify the parties’ separation agreement. We reverse.
Relying on Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980), the trial court construed paragraph 13(d) of the separation agreement as precluding the wife from seeking modification of another provision in paragraph 5 of the agreement. Paragraph 13(d) provides in pertinent part:
Each understands and agrees that this agreement constitutes the entire contract of the parties.... No modifications of any of the terms shall be valid unless in writing and executed by the same formality as this agreement.
Upon consideration, we find the language in paragraph 13(d) above materially distinguishable from the language of the property settlement agreement in Pusey. In Pusey, the agreement provided that it could not be modified without the written consent of each of the parties. In addition, the court found that the agreement was in the nature of a final property settlement. Thus, it was improper to grant the wife's petition for modification of alimony without the husband’s consent. In contrast, giving the language of paragraph 13(d) its plain meaning, and absent any evidence that the parties intended to give it any special meaning, we agree with appellant that this language requiring modifications to be in writing was inserted simply to prevent the parties from orally modifying the agreement. It does not require the parties to consent to modification in writing before a modification could be ordered, unlike the agreement in the Pusey case.
Because the trial court entered summary judgment based upon an erroneous reading of paragraph 13(d), the court has yet to address the question whether the provision in paragraph 5 of this separation agreement, requiring appellee to pay $750 monthly to appellant for a period of twelve months, is part of a true property settlement agreement, which the court may not modify, or whether it was alimony or support which the court may modify. In making this determination, the trial court must examine the plain language of the agreement, its surrounding circumstances and the parties’ apparent purpose in entering into the agreement. Kirchen v. Kirchen, 484 So. 2d 1308 (Fla. 2d DCA 1986). As this is a decision primarily for the trial court, in the exercise of sound judicial discretion, we remand for further proceedings consistent with this opinion. See Fort v. Fort, 90 So. 2d 313 (Fla.1956).
REVERSED and REMANDED.
THOMPSON and MINER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fort v. Anne Burton Fort, 90 So. 2d 313 (Fla. 1956)
- Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980)
- Margot Anne Raiche Kirchen v. Kirchen, 484 So. 2d 1308 (Fla. 2d DCA 1986)