RAFAEL A. VARGAS, APPELLANT,
v.
MARIA A. VARGAS, APPELLEE
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The appellate court affirmed the trial court's decision to modify a separation agreement to allow for permanent alimony, finding that the agreement's specific modification clause did not preclude such a change.
The appellate court affirmed the trial court's modification of the alimony term, holding that the agreement's provision requiring written modifications did not prevent the court from ordering permanent alimony.
[1] A separation agreement is enforceable when it is in writing, adequately executed by both parties, and the challenging party had the benefit of counsel and prior financial…
[2] Parties to a separation agreement may contract away their right to seek modification of alimony.
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Join FLexlaw to unlock all legal intelligenceAfter executing a separation agreement, the wife sought to modify the alimony term from a maximum of five years to permanent alimony. The trial court …
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HARRIS, Chief Judge.
Rafael Vargas, a captain in the United States Army, and his wife, Maria, were living in Germany when matrimonial discord arose. Maria, through counsel, prepared a separation agreement which she presented to Rafael for his approval.
The separation agreement was duly executed by both parties and was submitted to the court when Rafael ultimately filed for dissolution of the marriage in Orlando, Florida. Maria challenged the separation agreement on the basis of lack of full disclosure. The trial judge rejected her contention holding:
Well, I find they entered into an agreement that’s been reduced to writing and adequately executed by both of them. The wife had benefit of counsel. She was aware of her husband’s income, and there was financial disclosure prior to the entry of the agreement, and I would hold them to that agreement.
Maria then filed a supplemental petition for modification of the agreement to change the contract term limiting alimony to a maximum of five years to permit permanent alimony. The trial judge concurred with this petition and ordered permanent alimony. Rafael appealed; we affirm.
The only question before us is whether the wife, through the separation agreement, waived her right to seek modification.1 There is no doubt that Florida recognizes the right of parties to contract away their right to seek modification of even alimony awards. Lee v. Lee, 157 Fla. 439, 26 So. 2d 177 (1946); Stebbins v. Stebbins, 435 So. 2d 383 (Fla. 5th DCA 1983).
The applicable terms of this agreement are:
General Release: The parties mutually accept the provisions herein in full satisfaction of all property rights and all obligations whatsoever arising out of the marital relationship of the parties or otherwise, except as otherwise hereinafter provided. Each party, except as herein otherwise provided, does hereby release the other, and his or her respective legal representatives, successors, and assigns, from all causes of action, claims, rights or demands whatsoever which either ever had or now has against the other, and specifically relinquishes any right, title and interest in or to any past, present, or future earnings, accumulation, money, or property of the other party. (Emphasis added.)
Modification, Prior & Subsequent Agreements: The parties hereby cancel, annul, and invalidate any and all prior property settlement agreements made by them at any time heretofore, whether oral or written. All modifications of this agreement shall be of no effect unless expressed in writing and signed by both parties. The parties agree that this Agreement contains their entire understanding, there being no representations, promises, warranties, covenants, or undertakings (“side-agreements”) other than those expressly set forth herein.
Clearly, the modification provision has no application to the issue before us. The wife does not contend that there were “side-agreements” or that the agreement has been subsequently modified. It is to the General Release that we must look to in order to determine whether the wife has waived her right to seek modification of alimony.
In looking at this provision, however, we agree with the principle urged by Judge Schwartz in his dissenting opinion in Bassett v. Bassett, 464 So. 2d 1203,1205 (Fla. 3d DCA 1984) “an effective waiver of the right to modification may be deemed to arise only when it is stated either in express terms or through an interpretation of the agreement as a whole which can fairly lead to no other conclusion.”
The ci’itical language of the General Release provision is that emphasized above: “Each party ... does hereby release the other ... from all causes of action, claims, rights or demands whatsoever which either had or now has against the other.”
The right to seek modification of alimony which depends on a future change of circumstance is not a cause of action or claim that either party had either before the agreement or at the time of the agreement. The agreement, by its terms, does not attempt to waive causes of action for modification of support which might arise in the future. Had it done so, the waiver would have been effective. Without it, there is no effective waiver. AFFIRMED.
PETERSON and GRIFFIN, JJ., concur. . Wc agree that the support provision, without waiver, is the type subject to modification and that, if modification is appropriate, the modification ordered by the trial judge was within her discretion.
Cases With Similar Vibessemantic neighbors from the corpus
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Sasnett v. Odell O. Sasnett, 683 So. 2d 177 (Fla. 2d DCA 1996)…er of rights has occurred, the language used in the agreement 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 “irre…
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Emmel v. Emmel, 671 So. 2d 282 (Fla. 5th DCA 1996)…ights the agreement failed to clearly evince an intent that the alimony awarded to the wife could not be modified subsequent to the entry of the final judgment upon the requisite showing of a substantial change of circumstances. In Vargas v. Vargas, 654 So. 2d 963 (Fla. 5th DCA 1995), this court recently noted that, “there is no doubt that Florida recognizes the right of the parties to contract away the right to seek modification of even alimony awards.” Id. at 964. In Vargas, the parties signed an agreement…
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Raffle v. Gerard, 769 So. 2d 1136 (Fla. 3d DCA 2000)…PER CURIAM. Affirmed. Vargas v. Vargas, 654 So. 2d 963 (Fla. 5th DCA 1995); Bassett v. Bassett, 464 So. 2d 1203 (Fla. 3d DCA 1984), pet. for review denied, 476 So. 2d 672 (Fla.1985); Jaffee v. Jaffee, 394 So. 2d 443 (Fla. 3d DCA 1981). See Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992), cause dismi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lee v. Manfred B. Lee, 157 Fla. 439 (Fla. 1946)
- Bassett v. Bassett, 464 So. 2d 1203 (Fla. 3d DCA 1984)
- Barney v. State, 435 So. 2d 383 (Fla. 5th DCA 1983)