MICHEL WHISSELL, APPELLANT,
v.
SHERRONE WHISSELL, APPELLEE
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In this dissolution of marriage appeal, the Fourth District Court of Appeal affirmed most aspects of the trial court's judgment but reversed two key rulings: the court reversed the judgment for failing to provide specific steps for the former husband to reestablish unsupervised timesharing with the minor child, and reversed the alimony award because the parties had waived alimony in their prenuptial agreement and intended the salary payments to be contract-based rather than alimony.
The court held that the trial court erred in both respects. First, the judgment must be reversed and remanded because the court failed to set forth specific steps for the former husband to alleviate the timesharing restrictions, as required by precedent. Second, the court reversed the alimony award because the parties validly waived alimony in their prenuptial agreement and intended the salary payments to be enforceable as an employment contract rather than as alimony subject to contempt enforcement.
[1] A trial court errs by failing to provide specific steps for a parent to reestablish unsupervised timesharing with a child.
[2] A prenuptial agreement waiving alimony is a contract that must be construed to give effect to the parties' intent.
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Join FLexlaw to unlock all legal intelligence“The failure to 'set forth any specific requirements or standards' for the alleviation of timesharing restrictions is error.”
Establishes the legal standard that trial courts must provide specific steps for a parent to reestablish unsupervised timesharing
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Join FLexlaw to unlock all legal intelligenceMichel and Sherrone Whissell entered into a prenuptial agreement that waived any right to alimony but provided that upon dissolution of marriage, the …
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We affirm all aspects of the amended final judgment of dissolution of marriage, save two. We reverse the judgment insofar as it failed to provide Former Husband with specific steps to reestablish contact with the minor child beyond supervised timesharing. We also reverse the alimony award to Former Wife as it was contrary to the parties’ intent in the prenuptial agreement, wherein they waived any right to alimony.
Timesharing
The trial court found that it would be contrary to the child’s best interests for Former Husband to enjoy unsupervised timesharing. This finding was supported by competent substantial evidence. However, the judgment fails to provide Former Husband with specific steps to obtain unsupervised timesharing. “The failure to ‘set forth any specific requirements or standards’ for the alleviation of timesharing restrictions is error.” Witt-Bahls v. Bahls, 193 So.3d 35, 38 (Fla. 4th DCA 2016) (quoting Ross v. Botha, 867 So.2d 567, 571 (Fla. 4th DCA 2004)). “This applies to both the prevention of timeshar-ing altogether and to restrictions.” Id. While the trial court need not “set out every minute detail of the steps to reestablish unsupervised timesharing,” the parent must leave the courtroom “knowing that if [they] satisfactorily accomplish ] relatively specific tasks, [they] will be able to reestablish unsupervised timesharing.” Id. at 39. Because the trial court did not set forth specific steps for Former Husband to al*596leviate the restriction on timesharing, this part of the judgment must be reversed,
Alimony
The parties waived their right to alimony in a prenuptial agreement. Notwithstanding the alimony waiver, the prenuptial agreement provided that upon the entry of a final judgment of dissolution of marriage, Former Husband or one of his companies would pay Former Wife a gross salary of $6,000 per month for twenty-four months from the date of the entry of the final judgment of dissolution. Although the trial court found the parties waived their right to alimony in the prenuptial agreement, it found the parties intended the salary payments “would be -a. form of alimony e.g. durational alimony.” This was error.
“Valid prenuptial agreements regarding post-dissolution support are contracts.” Lashkajani v. Lashkajani, 911 So.2d 1154, 1158 (Fla. 2005). “[Contracts are to be construed in order to give effect to the intent of the parties.” Burns v. Barfield, 732. So.2d 1202, 1205 (Fla. 4th DCA 1999). Neither party questioned the validity or enforceability of the prenuptial agreement.
In waiving the right to alimony, the parties intended to take the gross salary payments outside'chapter 61, Florida Statutes, and outside the power of the trial court to hold Former Husband in contempt in the event,he fails to pay. See English v. Galbreath, 462 So.2d 876, 877 (Fla. 2d DCA 1985) (“Alimony payments ,., are enforceable by contempt proceedings,”); Walters v. Walters, 96 So.3d 972, 976 (Fla. 4th DCA 2012) (recognizing the trial court’s ability to hold a payor “in contempt for failing to pay the amount of court-ordered alimony to, a payee.”). Instead of enforcement by contempt,.the employment prenuptial agreement contemplated that the non-payment of “salary” would be enforceable as any other employment contract, by a traditional breach of contract action. The trial court thus erred in failing to give the prenuptial agreement the effect intended by the parties. -
Conclusion
The judgment is reversed and remanded for the trial court to provide Former Husband with the steps required to lift the timesharing restrictions, “We believe that modification of the order is possible from the record alone and do not suggest that a new trial is necessary.” Witt-Bahls, 193 So.3d at 39. We also reverse paragraph 15 of the judgment, where the trial court erred by treating the gross salary payments set forth in the prenuptial agreement as a form of durational alimony. In all other respects, the judgment is affirmed.
Affirmed in part, reversed in part, and remanded. _
Gerber, O.J., and Kuntz, J., concur. .
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Dukes v. Griffin, 230 So. 3d 155 (Fla. 1st DCA 2017)…s. So we certify conflict with Perez, 160 So. 3d 459, Witt-Bahls, 193 So. 3d 35, and other cases addressing this issue.1 III. The final judgment 'entered below is AFFIRMED. ROBERTS and M.K. THOMAS, JJ., CONCUR. , See, e.g., Whissell v. Whissell, 222 So. 3d 594 (Fla. 4th DCA 2017); Davis v. Lopez-Davis, 162 So. 3d 19, 21 (Fla. 4th DCA 2014); Grigsby v. Grigsby, 39 So. 3d 453, 457 (Fla. 2d DCA 2010); Ross v. Botha, 867 So. 2d 567, 571 (Fla. 4th DCA 2004). Some older cases also get cited as precedent for the…
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Lightsey v. Davis, 267 So. 3d 12 (Fla. 4th DCA 2019)
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Deidre Mallick v. Mallick, 311 So. 3d 243 (Fla. 2d DCA 2020)…. In such a circumstance when there is no actual 9These include Pierre v. Bueven, 276 So. 3d 917 (Fla. 3d DCA 2019); Lightsey v. Davis, 267 So. 3d 12 (Fla. 4th DCA 2019); Solomon v. Solomon, 251 So. 3d 244 (Fla. 3d DCA 2018); Whissell v. Whissell, 222 So. 3d 594 (Fla. 4th DCA 2017); Witt-Bahls v. Bahls, 193 So. 3d 35 (Fla. 4th DCA 2016); Forssell v. Forssell, 188 So. 3d 880 (Fla. 4th DCA 2016); Tzynder v. Edelsburg, 184 So. 3d 583 (Fla. 3d DCA 2016); Davis v. Lopez-Davis, 162 So. 3d 19 (Fla. 4th DCA 2014);…
Authorities Cited
- Hadi B. Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005)
- Ross v. Hayley Lisa Botha, 867 So. 2d 567 (Fla. 4th DCA 2004)
- Witt-Bahls v. Bahls, 193 So. 3d 35 (Fla. 4th DCA 2016)
- English v. Henderson E. Galbreath, 462 So. 2d 876 (Fla. 2d DCA 1985)
- Walters v. Walters, 96 So. 3d 972 (Fla. 4th DCA 2012)