LETICIA R. GRASSO, F/K/A, LETICIA R. MULHOLLAND, APPELLANT,
v.
MICHAEL P. MULHOLLAND, APPELLEE
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The Florida appellate court affirmed three of four visitation orders rendered by the trial court in a family law dispute between former spouses. The court held that the trial court properly interpreted an ambiguous visitation provision in the parties' dissolution decree by resolving the ambiguity in favor of increased father-child visitation based on the best interests of the children.
The court held that the trial court had jurisdiction to interpret and clarify the ambiguous visitation provision in the decree without formal modification pleadings. The court affirmed that the trial court properly resolved the contractual ambiguity by finding that the 'not less than' language, based on the parties' intent and performance over the years, authorized expanded visitation beyond the stated schedule, and this interpretation served the best interests of the children.
[1] Certain visitation orders rendered by a trial court are appealable, while an order denying an objection to a hearing to alter, modify, or extend visitation is a non-final…
[2] A trial court has jurisdiction to interpret and clarify a parties' agreement incorporated into a dissolution decree regarding visitation, even without a formal pleading s…
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Join FLexlaw to unlock all legal intelligence“the court was, in essence, interpreting and clarifying the parties' agreement, incorporated into the decree of dissolution, with regard to the parties' visitation schedule with their three children”
Establishes the nature of the trial court's action as interpretation and clarification of the existing agreement rather than modification
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Join FLexlaw to unlock all legal intelligenceThe case involved a dispute over visitation rights concerning three children following the parties' dissolution of marriage. The settlement agreement …
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We agree with appellant that three of the four visitation orders rendered by the trial court are appealable,1 but a fourth order denying appellant’s objection to a hearing to alter, modify or extend visitation is a non-final, non-appealable order.2 We also decline to review by certiorari any of the parenting orders sought to be brought before us by appellant,3 and requirements that the parties keep diaries of their behavior with one another and attend certain classes.
We reject appellant’s position that the trial court lacked jurisdiction to render the appealable orders because appellee failed to file pleadings seeking a modification of the parties’ dissolution decree regarding visitation rights and asserting a substantial change in circumstances.4
Although this is a close case, it appears to us that the court was, in essence, interpreting and clarifying the parties’ agreement, incorporated into the decree of dissolution, with regard to the parties’ visitation schedule with their three children. See Fussell v. Fussell, 778 So. 2d 517 (Fla. 1st DCA 2001); Roque v. Paskow, 812 So. 2d 500 (Fla. 4th DCA 2002); Dickinson v. Dickinson, 746 So. 2d 1253 (Fla. 5th DCA 1999). The trial court found that the provision in the settlement that the former husband have not “less than” the times stated in the schedule for visitation with his children was ambiguous and, based on the parties’ intent and their performance of the agreement over the years, this provision meant that he was intended to have more time with his children than the schedule provided.
An ambiguity in a contract should be resolved by the trier of fact. North Star Beauty Salon, Inc. v. Artzt, 821 So. 2d 356 (Fla. 4th DCA 2002); Board of Trustees of Internal Improvement Trust Fund v. Lost Tree Village Corp., 805 So. 2d 22, 26 (Fla. 4th DCA 2001). And, in this context, ambiguities should be resolved in accord with the best interest of the children. Delissio v. Delissio, 821 So. 2d 350 (Fla. 1st DCA 2002); Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996); Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA 1989). The trial court did so in this case, finding that it was in the best interest of the children to have more visitation with their father than was set forth in the visitation schedule. See Sinclair v. Sinclair, 804 So. 2d 589 (Fla. 2d DCA 2002).
AFFIRMED.
PLEUS, J., and COBB, W.H., Senior Judge, concur. . See Fla. R.App. P. 9.030(1)(b)(A); Fla. R.App. P. 9.030(1)(b)(B).
. Fla. R.App. P. 9.130. See Del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987).
. The Notice of Appeal lists the following orders as appealable: (1) Order on Former Wife’s Objection to Hearing to Alter, Modify, Vary or Extend Visitation; (2) Order on Former Wife's Motion to Enforce Agreement; (3) Amended Order on Former Wife's Motion to Enforce Agreement; (4) Order on Former Husband's Request for Expanded Visitation, all of which constitute the Visitation Orders; and (5) Order Requiring Parents' Diaries; and (6) Order for Assessment by the Court Care Center for Divorcing Families, the Parenting Orders.
. See Ellis v. Ellis, 603 So. 2d 114 (Fla. 4th DCA 1992).
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Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005)…ound to be ambiguous or in need of clarification, modification, or interpretation.” Ballantyne v. Ballantyne, 666 So. 2d 957, 958 (Fla. 1st DCA 1996). Ambiguities should be resolved in accord with the children’s best interests. Grasso v. Mulholland, 835 So. 2d 361, 361 (Fla. 5th DCA 2003). There are no ambiguities in the Mediation Agreement: There are no provisions to impute income or to make retroactive awards. It provided that, at the time of employment, the parties should attempt to agree on a new support…
Authorities Cited (13 total)
- del Castillo v. Ralor Pharmacy, Inc., 512 So. 2d 315 (Fla. 3d DCA 1987)
- Ballantyne v. Ballantyne, 666 So. 2d 957 (Fla. 1st DCA 1996)
- Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA 1989)
- Delissio v. Delissio, 821 So. 2d 350 (Fla. 1st DCA 2002)
- Bd. of Trs. of the Internal Improvement Tr. Fund v. Lost Tree Vill. Corp., 805 So. 2d 22 (Fla. 4th DCA 2001)
- Sinclair v. Sinclair, 804 So. 2d 589 (Fla. 2d DCA 2002)
- Mark v. Killigan, 821 So. 2d 356 (Fla. 1st DCA 2002)
- Roque v. Paskow, 812 So. 2d 500 (Fla. 4th DCA 2002)
- Dickinson v. Dickinson, 746 So. 2d 1253 (Fla. 5th DCA 1999)
- Delashmutt v. State, 778 So. 2d 517 (Fla. 1st DCA 2001)