ROBERT C. SCHWEBKE, APPELLANT,
v.
AVELINE C. SCHWEBKE, APPELLEE
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Former husband Robert Schwebke appealed orders requiring him to pay reduced alimony and attorneys' fees in a contempt action. The court reversed the alimony reduction order and the attorneys' fees award, holding that the separation agreement clearly provided for automatic alimony reduction upon mortgage payoff, which Schwebke had legitimately accomplished.
The court held that the settlement agreement's plain language required automatic alimony reduction to $100 weekly once the mortgage was paid in full, which occurred when Robert satisfied the mortgage on July 28, 1975. The court also held that the award of $4,000 in attorneys' fees was improper because the master made no findings as to Aveline's needs or Robert's financial ability, as required by Florida law.
[1] A separation and property settlement agreement should be interpreted based on its plain meaning unless the context clearly indicates a peculiar interpretation.
[2] Upon full payment of a mortgage, a contractual obligation to reduce weekly alimony payments is automatically triggered.
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Join FLexlaw to unlock all legal intelligence“a separation and/or property settlement agreement like any other agreement must be given a realistic interpretation based on its plain everyday meaning as conveyed by its terms unless its context unmistakably shows that the parties intended that it be given some peculiar interpretation not readily apparent on its face”
Establishes the standard for interpreting settlement agreements in this jurisdiction
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Join FLexlaw to unlock all legal intelligenceIn March 1962, Robert and Aveline Schwebke's divorce decree incorporated a separation and property settlement agreement whereby Robert agreed to pay $…
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PER CURIAM.
In these consolidated appeals defendant, Robert Schwebke, former husband of the plaintiff, Aveline Schwebke, seeks review of an order denying his exceptions to the general master’s report and two orders ratifying the general master’s reports awarding Aveline $138.50 weekly alimony and $4,000 as reasonable attorneys’ fees in this contempt action.
In March 1962 a final divorce decree was entered between Aveline and Robert Schwebke incorporating a separation and property settlement agreement between the parties pursuant to which Robert deeded his interest in the marital residence to Aveline who then assumed responsibility for the mortgage payments. Robert further agreed to pay Aveline $175 per week alimony and at such time as the mortgage on the marital residence has been paid in full, the weekly alimony would be reduced to $100. Robert paid Aveline the $175 weekly alimony through July 1975; however, at the end of July he voluntarily paid off the mortgage, obtained a satisfaction and commencing August 1 tendered $100 per week alimony to Aveline who refused to accept. Ave-line then filed the instant motion for order adjudging Robert in contempt of court and to enforce the settlement agreement on the ground that since the mortgage would have been fully liquidated on April 1, 1982 as a result of the $146 monthly payments, Robert’s obligation to pay $175 per week alimony was definite in duration and for a determinable amount. Aveline also requested a judgment for the arrearages and attorneys’ fees. The trial judge referred the contempt issue to a general master who, after hearing argument of counsel, filed his report recommending that Robert be required to pay the $175 weekly alimony until the maturity date of the mortgage (March 1,1982). He further recommended that Robert be credited with the amount of his prepayment of the mortgage (i.e. a credit of $36.50 a week). The trial judge approved the master’s recommendation and ordered Robert to pay Aveline $138.50 per week alimony. Robert filed exceptions to the report which after a hearing were denied by order of March 19, 1976. The issues of attorneys’ fees and court costs were also referred to the general master who recommended that Aveline be awarded court costs and $4,000 as reasonable attorneys’ fees. By order of April 3, 1976 the trial judge ratified and approved this recommendation. We reverse.
First, a separation and/or property settlement agreement like any other agreement must be given a realistic interpretation based on its plain everyday meaning as conveyed by its terms unless its context unmistakably shows that the parties intended that it be given some peculiar interpretation not readily apparent on its face. Bergman v. Bergman, 145 Fla. 10, 199 So. 920 (1940). The agreement in this case clearly provides that upon the subject mortgage being paid in full, the weekly payments shall be reduced to $100. Robert paid the mortgage in full on July 28, 1975 and obtained a satisfaction from the mortgagee. Therefore, the weekly payments automatically were reduced to $100 per week. Cf. Gibson v. Gibson, 249 So. 2d 446 (Fla. 1st DCA 1971).
Second, the issue involved was that of contempt which was referred by the trial judge to the general master. The general master correctly did not find Robert to be in contempt but did, in effect, modify the settlement agreement in his report by recommending that Robert pay $138.50 weekly alimony to Aveline. This recommendation and the trial judge’s order ratifying it were erroneous as Aveline did not request modification and the order of referral did not include the issue of modification. See Smithwick v. Smithwick, 343 So. 2d 945 (3d DCA 1977). Accordingly, the order approving the master’s report and requiring Robert to pay $138.50 weekly alimony is reversed.
We also must reverse the order approving the general master’s report that Aveline be awarded court costs and $4,000 in reasonable attorneys’ fees because the master made no findings as to Aveline’s needs or Robert’s financial ability. See Darcy v. Darcy, 285 So. 2d 59 (Fla. 4th DCA 1973); Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973). We, therefore, remand the cause to the trial court with directions to hold a new hearing on the issue of attorneys’ fees.
Affirmed in part, reversed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pusey v. Pusey, 386 So. 2d 269 (Fla. 3d DCA 1980)…alistic interpretation based on its plain everyday meaning as conveyed by its terms unless its context unmistakably shows that the parties intended that it be given some peculiar interpretation not readily apparent on its face. Schwebke v. Schwebke, 347 So. 2d 645 (Fla. 3d DCA 1977); Sosnowitz v. Sosnowitz, 342 So. 2d 524 (Fla. 3d DCA 1977). The agreement in this case clearly provides that Alfred’s alimony payments are to be credited for only those monies that Joan receives from the family trust under the Wil…
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Vestus Elbert Pruitt, Jr. v. August Owens Pruitt, 370 So. 2d 813 (Fla. 3d DCA 1979)…d 53 (Fla. 4th DCA 1970). However, we believe that the trial court erred when it awarded attorney’s fees to appellee in regard to appellant’s motion. See, e. g., Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977); and Schwebkne v. Schwebkne, 347 So. 2d 645 (Fla. 3d DCA 1977). Accordingly, the order appealed is affirmed, except, to the extent that it awarded attorney’s fees to appellee, it is reversed. Affirmed in part, reversed in part.…
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Freid v. Freid, 717 So. 2d 145 (Fla. 5th DCA 1998)…r an appellate court to meaningfully review an attorney fee award should an appeal be filed. Failure to make these findings requires a reversal and remand to the lower court. Walsh v. Walsh, 600 So. 2d 1222 (Fla. 1st DCA 1992); Schwebke v. Schwebke, 347 So. 2d 645 (Fla. 3d DCA 1977). Remands to the trial court due to lack of findings are a waste of judicial time and effort, as well as a waste of money for the state and the respective parties. In this case, the trial court should swiftly deal with this issue…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)
- Bergman v. Bergman, 145 Fla. 10 (Fla. 1940)
- Hernandez v. Hernandez, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Mertz v. Mertz, 287 So. 2d 691 (Fla. 2d DCA 1973)
- Darcy v. Darcy, 285 So. 2d 59 (Fla. 4th DCA 1973)
- Gibson v. Gibson, 249 So. 2d 446 (Fla. 1st DCA 1971)