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Each party shall be free from interference,

authority, and control, direct or indirect, by the
other, as fully as if he or she were single and

unmarried." Section XXII of the MSA provided
the agreement "is binding on the parties

permanently and irrevocably and shall survive
said suit for dissolution of marriage or any law

suit involving the parties."

On December 24, 1998, the parties remarried.

On March 20, 2000, the wife petitioned for
CASE NO. 4D03-1248
dissolution of marriage. In her petition, she

sought child support, temporary, rehabilitative,

permanent and/or lump sum alimony, equitable
Opinion filed December 15, 2004
distribution of the parties' property acquired

during the course of their marriages,
Appeal from the Circuit Court for the
enforcement of the executory portion of the
Seventeenth Judicial Circuit, Broward County;
husband's support obligations under the 1997
Joyce M Julian, Judge; L.T. Case No. 00-005091
MSA, and attorney's fees.

The former husband filed a "Motion to
Robert L. Bogen, Boca Raton, for appellant.
Determine Whether a Previous Marital

Settlement Agreement is Binding." The original
John B. Rogers, Coral Springs, for appellee.
trial judge issued an order, which stated:

1. Cox v. Cox, 659 So. 2d 1051 (Fla. 1995),

controls this issue by virtue of its holding (1)
The former wife appeals an order dissolving
that reconciliation or remarriage abrogates
her second marriage to the same husband. She
the executory provisions of a prior marital
raises four issues, two of which we find require
settlement agreement unless there is an
a reversal. Those issues concern the trial court's
explicit statement in the agreement that the
interpretation of the Marital and Property
parties intended otherwise, and (2) that the
Settlement Agreement and its refusal to allow
executed provisions of a prior marital
the former wife to present evidence in support of
settlement agreement are not affected by
her claims. We reverse and remand the case for
reconciliation or remarriage absent a
further proceedings consistent with this opinion.
reconveyance or a new written agreement to

the contrary.
The parties married the first time on August

28, 1977, and divorced on August 28, 1997. The
2. The language contained in the parties'
1997 judgment of dissolution incorporated a
prior agreement contains that degree of
Marital and Property Settlement Agreement
finality as to the provisions thereof such as
(MSA), which provided for six years of
to constitute a sufficiently explicit statement
rehabilitative alimony, child support, and
that reconciliation or remarriage does not
equitable distribution of property.
abrogate the executory terms of the

Significantly, the MSA also provided "the

parties shall continue to live separate and apart
The order further determined the rule
from each other for the rest of their natural lives.
pronounced in Cox applied only to property

distribution, not support, and the combined
The court found the former wife was entitled
length of the parties' two marriages and their
to the benefit of the MSA, bridge-the-gap
separation should be considered in calculating
alimony for three years, and attorney's fees.
The court found no entitlement to equitable

distribution for the second marriage.
A successor judge heard the petition for

dissolution on July 2nd and November 20th,
We disagree with the trial court on two issues.
2002. At the July hearing, each attorney
First, the court erred in determining the MSA
explained their interpretation of the prior court
explicitly addressed the issue of remarriage or
order. The successor judge disagreed with parts
reconciliation to allow the executory provisions
of the prior order and indicated it was not only
to survive the remarriage. The words --
inconsistent, but set the stage for an appeal no
reconciliation and remarriage -- are nowhere to
matter the outcome of the hearing.
be found in the MSA. In fact, the MSA

specifically anticipates the parties will NOT
At the November hearing, the successor judge
reconcile by indicating the parties shall "live
informally questioned the parties' counsel
separate and apart from each other for the rest of
regarding their respective positions. The former
their natural lives."
wife argued she was entitled to permanent

alimony and requested a trial. The court denied
As the supreme court noted in Cox, "parties in
her request. Without conducting a trial, the
the throes of a dissolution who enter into a
court decided it would incorporate the 1997
settlement agreement are not contemplating
MSA into the final order. Thereafter, the former
reconciliation or remarriage." Id. at 1054. For
wife filed a motion to disqualify the judge based
this reason, the supreme court held "that
upon the court's refusal to conduct a trial or
reconciliation or remarriage abrogates the
receive evidence.1
executory provisions of a prior marital

settlement agreement unless there is an explicit
On December 2, 2002, the successor judge
statement in the agreement that the parties
entered a final judgment of dissolution.
intended otherwise." Id.

[T]he Court finds that the Mediated Marital
Explicit means "characterized by full clear
Settlement Agreement that ended the first
expression: being without vagueness or
marriage, and was dated July 16, 1997, should
ambiguity: leaving nothing implied . . . ."
remain in full force and effect. The Honorable
Richard D. Eade, the prior Circuit Court Judge
DICTIONARY (Unabridged) (3d ed. 1993). If
on this case, entered an Order on March 9,
neither the parties nor the court can agree that
2001, indicating that such Mediated Marital
the MSA provides for the executory provisions
Settlement Agreement contained sufficient
of the MSA to survive a remarriage, then the
"explicit statements", to bring it within the
agreement cannot, by definition, be explicit.
holding in the case of Cox v. Cox, 659 So. 2d

1051, [sic], (Fla. 1995), thus avoiding the
Cox requires this precision in wording. This is
abrogation of the Settlement Agreement
because "it is the presumed intent of the parties
provisions. This Court concurs in the finding
at the time of the reconciliation to resume the
of "explicit statements", after having
marital relationship in all respects and abrogate
reviewed the entire Mediated Marital
any prior agreements restricting or inhibiting the
Settlement Agreement.
rights of one of the spouses . . . ." Cox, 659 So.

2d at 1054. (quoting Brazina v. Brazina, 233

N.J. Super. 145, 558 A. 2d 69, 72 (Ct. Ch. Div.
1989)). Because the court system strives to
The successor judge is no longer on the bench.
This fact along with our remand for further
encourage and strengthen marriage, it cannot
proceedings, renders this and other issues moot.
favor the enforcement of executory provisions


that would seek to undermine it. For such
provisions to survive a remarriage, the intention

of the parties must be clear or forever fade into
GROSS, J., concurs.
the abyss of the prior divorce. We therefore

hold the MSA in this case lacks the requisite
FARMER, C.J., dissents with opinion.
"explicit statement" necessary to insure the

executory provisions of the agreement survived
FARMER, C.J., dissenting.
the remarriage.

The only real issue in this case is
The dissent reaches the opposite conclusion on
whether the 1999 marital settlement agreement,
this issue by relying on section XXII of the
reached during mediation in a pending
MSA. We agree the language in this provision
dissolution of the parties' original marriage, is
suggests the permanent and irrevocable nature of
binding in this new dissolution action after their
the agreement. However, it fails to account for
brief reconciliation. The majority conclude that
the earlier statement revealing the parties never
the agreement has some application but does not
contemplated reconciliation or remarriage.
bar a trial on alimony and other issues. Because
Thus, it fails to pr ovide the "explicit statement"
the text of the agreement does not allow the wife
required by Cox. As much as we would prefer
to seek any alimony other than what has been
to avoid further litigation for the parties, we
provided in that agreement, and the parties
must follow the law.
advised the court that they had no dispute as to

the other issues mentioned in the majority
We also find the trial court committed
opinion, I can find no error in denying her a
reversible error when it denied the former wife's
trial. I would affirm.
request to present evidence. "Due process

requires that a party be given the opportunity to

The pertinent provisions in the
be heard and to testify and call witnesses on his
agreement are as follows:
behalf, . . . and the denial of this right is
"it is the intention and desire of the parties to
fundamental error." Pettry v. Pettry, 706 So. 2d
settle their respective property rights, support
107, 108 (Fla. 5th DCA 1998). The issues to be
rights, and all other marital issues...."
determined at the final hearing included the
(Preamble, 4th cl.);
former wife's entitlement to permanent,
. . .
rehabilitative or lump sum alimony, equitable
"the Husband and Wife freely and fully accept
distribution of the parties' property acquired
the provisions, terms and conditions hereof
during the course of their marriages, and
and in consideration of the promises and
attorney's fees. The trial court summarily
mutual covenants herein contained as well as
disposed of these issues by informally
for other good and valuable consideration;
discussing them with the attorneys. The court
understanding the stated objective is to finally
did not allow either party to present evidence or
settle and determine in all respects and for all
cross-examine witnesses. This summary
purposes the respective present and future
process, while initially appearing efficient,
property and financial rights, claims and
denied the former wife her due process of law.
demands in such manner that any action with
This error becomes more significant based on
respect to said rights and obligations, past,
our holding that the executory provisions of the
present, future, shall be governed and
MSA did not survive the remarriage.
conclusively settled and determined by this

Agreement." (Agreement cl.)
We therefore reverse the final judgment of
. . .
dissolution and remand the case to the trial court
"in any suit for dissolution of marriage or
for further proceedings consistent with this
separate maintenance hereinafter brought by
either party against the other, this Agreement


shall be filed therein and introduced in
out that there was no dispute as to what was still
evidence by either party to such cause as their
owed under the 1999 agreement; the husband
marital settlement and made part of any order,
conceded liability and asked only for a brief
judgment or decree entered therein. This
period to obtain a loan to pay in full the total still
Marital and Property Settlement Agreement is
owing (which the trial judge allowed without
binding on the parties permanently and
objection from the wife). The parties also each
irrevocably and shall survive said suit for
acknowledged there was no dispute as to any
dissolution of marriage or any law suit
property acquired during the brief remarriage.
involving the parties." (Para. XXII) [e.s.]
As for the wife's claim for attorneys fees, the
In similar terms the agreement settles all
Judge determined the reasonable hourly rate to
property claims and obligations.
be used, and announced that the total fees

awarded to the wife from the husband would be
The highlighted text explicitly demonstrates
determined in a later hearing. That left only the
an intent that the parties intended their 1999
subject of alimony as a possible issue for trial.
agreement to govern all future relations between

them and that it applied to any future dissolution
After listenin g to arguments pro and con and
of marriage action.2 Cox v. Cox, 659 So.2d 1051
considering the precise text of the agreement,
(Fla. 1995), requires only that the agreement be
the Judge announced that she would award only
explicit as to the intent of the parties regarding
rehabilitative alimony for three years for the
the effect of their agreement. Moreover, Cox
remarriage. The wife objected and wanted to
applies only to executory agreements, not to
know why the court would not hear further
fully executed issues. 659 So. 2d at 1054. Here,
evidence on her claim to permanent alimony.
the agreement is absolutely clear that this is an
The trial Judge responded -- correctly in my
unqualified waiver of permanent alimony
opinion -- that the alimony agreement was an
forever. The waiver has been executed; there is
executed contract, not an executory one, waiving
nothing left to perform with regard to it. It is
any future claim to permanent alimony.
clearly binding in this second divorce. Under
Because as a matter of law she had irrevocably
the agreement the only alimony due is the
given up permanent alimony, I cannot
rehabilitative alimony for six years (Para. XVI)
understand how it would be error to deny her a
and certain additional support payments for the
trial on that issue.
period until the original house was sold (Para.

XI). By this agreement she waived all future
Where a trial Judge determines that a party's
claims for permanent alimony.
claim is barred from further litigation as a matter

of law, there is no lack of due process in

At the final hearing in this dissolution
refusing to receive evidence on that issue. As
action after reconciliation, the parties thrashed
the wife's claim to permanent alimony was fully
out all the issues with the trial Judge. It turned
determinable on legal grounds arising from a

legal construction of an agreement, no further
2 The majority think the agreement is not explicit
evidence was necessary or even appropriate.
as to its effect on any remarriage. They point out that
After all, parol evidence is inadmissible to
the agreement states that the parties intend "at all
change a written contract.
times" to live apart for the rest of their lives. From

this the majority infer an explicit statement that they
The refusal to receive further evidence on the
were not thinking of remarriage. Actually the only
permanent alimony claim does not implicate an
logical inference from the quoted text is to the
issue of due process but of substantive law. Not
contrary, that they were then explicitly thinking of
every claim is factually litigable just because a
never remarrying. But their intent at the time of
making the agreement is hardly informed by their
party thinks it should be. If that were the case,
later change of heart. Moreover, one can intend
summary judgments and directed verdicts would
never to remarry yet still agree to settle all claims that
not be allowed. Although this was a non-jury
might arise from any future such misstep.


trial, in effect the trial Judge here granted a
"directed verdict" on the issue of permanent
alimony because a proper legal interpretation of
the contract waived it.

I should also stress that the trial Judge found
that the wife had already spent way too much of
the parties' limited resources in litigating her
remarriage claim to permanent alimony. The
expeditious manner in which the trial Judge
conducted the trial was a desirable effort to
spare the parties from further diminution in their
limited personal resources caused by spending
more money in attorney's fees over an issue that
had been settled as a matter of law. Sadly, a
reversal by this court scuttles that wise
resolution and does instead the very thing the
settlement agreement was designed to avoid. If
there is equity and due process in such a
reversal, I cannot see it.



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