CAROL L. AGLIANO, APPELLANT,
v.
JOHN B. AGLIANO, APPELLEE

Fla. 2d DCA | 1992-10-02
No. 91-03179
CAMPBELL, A.C.J., and PARKER, J„ concur.
605 So. 2d 597 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 7 cases

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Synopsis

Carol Agliano sought to modify her divorce settlement agreement to increase alimony due to an unexpected diagnosis of incurable cancer that prevented her from achieving self-sufficient status. The court affirmed the dismissal of her petition, holding that the marital settlement agreement's explicit waiver of modification rights is binding and unambiguous, and that unanticipated illness does not override the parties' contractual commitments.


Holding

The court held that the marital settlement agreement's unequivocal waiver of modification rights is binding and enforceable, and that unanticipated illness does not provide grounds to override the parties' contractual waiver. The trial court properly lacked jurisdiction to modify the agreement, and the dismissal of Carol's petition was affirmed.


Headnotes

[1] A marital settlement agreement incorporated into a final judgment of dissolution may contain an irrevocable waiver of modification rights regarding alimony.

[2] A party's unforeseen illness, however unfortunate, does not necessarily vitiate an unqualified waiver of alimony modification rights contained within a marital settlement…

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Key Quotes

“Both parties irrevocably waive any and all modification entitlement respecting the rehabilitative and lump sum alimony benefits ..., and agree that said rehabilitative and lump sum benefits shall be non-modifiable by either party during the term of said payments, or thereafter, and the parties hereby specifically agree that this is an irrevocable waiver of any and all right to subsequently petition the court for any modification of alimony, whether rehabilitative, lump sum or oth-erwise”

This quote from paragraph fourteen of the marital settlement agreement establishes the unambiguous and unqualified waiver of modification rights that the court found binding.

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Facts & Procedural History

Carol and John Agliano were married for 27 years and divorced in 1986, producing three children. Their marital settlement agreement provided Carol wit…

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Opinion of the Court
FRANK, Judge.

FRANK, Judge.

Carol Agliano has sought our review of an order dismissing her petition for modification of a final judgment of dissolution. We have reviewed the parties’ marital settlement agreement, incorporated in the final judgment, as well as Carol’s petition. Although we sympathize with her in her current difficulties, we have no choice but to affirm the trial court.

On August 13, 1986, John Agliano filed a petition to divorce Carol Agliano, his wife. The marriage, which lasted twenty seven years, produced three children. The youngest child resides primarily with Carol and is the Agliano’s only remaining minor. Carol and John share parental responsibility for his care.

After the petition was filed, the Aglianos negotiated and executed a marital settlement agreement, mutually pledging to be bound by its terms. Each had the advice of counsel when negotiating the agreement and entered into it freely and voluntarily. The agreement contemplated division of the marital property, custody of the minor child, alimony to Carol, and child support. Carol was provided with rehabilitative alimony of $1000.00 per month for ten years, that amount thereafter decreasing to $500.00 per month for five years. Carol further received $1500.00 per year in lump-sum alimony for four years, the marital home and the family car. John agreed to maintain health insurance coverage for Carol for three years following the divorce, and to assume many, if not most, of their marital debts.

At some point following the divorce, Carol was found to have incurable cancer. For several months, she submitted to treatments that ultimately proved unsuccessful. Carol did not work during the period of treatment. Her illness exacted a financial toll not anticipated or foreseen at the time of divorce. Despite her illness, however, she eventually returned to work earning a wage of six dollars per hour. Consequently, in July 1991, Carol petitioned the trial court to modify the final judgment specifically requesting an enhancement of rehabilitative alimony, alleging a material change in circumstances — her recent decline in health.

Carol does not challenge the validity of the agreement. Rather, she argues that the fulfillment of its terms was impliedly conditioned on her capacity to achieve a self-supporting status. According to Carol, the parties did not intend a “non-modifiable” settlement, but rather an agreement anticipating Carol’s ultimate rehabilitation. We are unable to extract that conclusion from the agreement.

The agreement in unmistakable terms defines the boundaries of the parties’ financial relationship. Paragraph fourteen of the agreement provides that:

Both parties irrevocably waive any and all modification entitlement respecting the rehabilitative and lump sum alimony benefits ..., and agree that said rehabilitative and lump sum benefits shall be non-modifiable by either party during the term of said payments, or thereafter, and the parties hereby specifically agree that this is an irrevocable waiver of any and all right to subsequently petition the court for any modification of alimony, whether rehabilitative, lump sum or oth-erwise_

Contrary to Carol’s view, we find no indication in the agreement that either party’s loss of good health would be an event devitalizing paragraph fourteen.

We have no doubt that cancer has impaired Carol’s efforts to achieve a life-style commensurate with that she experienced during marriage. We cannot, however, ignore the fact that with the assistance of counsel Carol committed to a contract in which she waived all rights to increased support, and in which all financial matters between John and her were settled with finality. Her illness, however unanticipated, however unfortunate, does not detract from the unqualified terms of that agreement. Cunningham v. Cunningham, 499 So. 2d 880 (Fla. 1st DCA 1986); Bassett v. Bassett, 464 So. 2d 1203 (Fla. 3d DCA 1984), rev. denied, 476 So. 2d 672 (Fla.1985); Turner v. Turner, 383 So. 2d 700 (Fla. 4th DCA), rev. denied, 392 So. 2d 1381 (Fla.1980). The trial court, having approved and adopted all provisions of the agreement, was without jurisdiction, and correctly refused, to undertake modification. We, too, have neither the authority nor the power to alter or reform the parties’ agreement.

Accordingly, the dismissal of the petition for modification is affirmed.

CAMPBELL, A.C.J., and PARKER, J„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Sasnett v. Odell O. Sasnett, 683 So. 2d 177 (Fla. 2d DCA 1996)
    …nt must clearly and unambiguously express waiver or the language must be such that an interpretation of the agreement as a whole can lead to no other conclusion but waiver. Vargas v. Vargas, 654 So. 2d 963 (Fla. 5th DCA 1995). In Agliano v. Agitano, 605 So. 2d 597 (Fla. 2d DCA 1992), this court found a waiver of any future entitlement to modification of alimony where the marital settlement agreement provided in unequivocal terms that the parties “irrevocably waive any and all modification entitlement.” Simila…
  • Ferraro v. Ferraro, 891 So. 2d 1211 (Fla. 3d DCA 2005)
    …having approved and adopted all provisions of the agreement, was without jurisdiction, and correctly refused to undertake modification. We, too, have neither the authority nor the power to alter or reform the parties’ agreement.” Agliano v. Agliano, 605 So. 2d 597, 598 (Fla. 2d DCA 1992). See also Cunningham v. Cunningham, 499 So. 2d 880, 882 (Fla. 1st DCA 1986) (“It is well-established that the statutory right to petition for modification of an alimony award may be intentionally or impliedly waived and that…
  • Nishman v. Stein (Fla. 2d DCA 2020)
    …aragraph "E," it is abundantly clear that the parties intended to carve out and "except" from the waiver claims for time-sharing, parenting plans, and child support, such as the ones before us. See Sasnett, 683 So. 2d at 178; cf. Agliano v. Agliano, 605 So. 2d 597, 598 (Fla. 2d DCA 1992) (concluding former wife unequivocally waived right to modify alimony in provision of the parties' marital settlement agreement). Finally, we note Mr. Nishman, himself, after the Agreement was executed and ratified by the cour…

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