Bassett v. Bassett

• Decision Date: 02 October 1984
• Docket Number: No. 83-1997,83-1997
• Citation: 464 So.2d 1203,10 Fla. L. Weekly 430
• Parties: 10 Fla. L. Weekly 430 Marguerite Petitjean BASSETT, Appellant, v. Harry Hood BASSETT, Appellee.
• Court: Florida District Court of Appeals

Page 1203

464 So.2d 1203

10 Fla. L. Weekly 430

Marguerite Petitjean BASSETT, Appellant, v. Harry Hood BASSETT, Appellee.

No. 83-1997.

District Court of Appeal of Florida Third District.

Oct. 2, 1984.

On Rehearing Feb. 12, 1985.

Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, Paul Louis and John Zavertnik, Miami, for appellant.

Steel, Hector & Davis and Talbot D'Alemberte and Clay Craig, Miami, for appellee.

Before SCHWARTZ, C.J., and BARKDULL and DANIEL S. PEARSON, JJ.

SCHWARTZ, Chief Judge.

Ms. Bassett appeals from the denial of her motion for upward modification of the alimony provision of an agreement incorporated into a final decree of divorce rendered in 1955. The order was founded on the trial court's determination, reached after taking testimony concerning the surrounding circumstances and the parties' intentions when it was executed, that the agreement embodied a relinquishment of Ms. Bassett's statutory right to modification. We reverse because of the absence of a clear waiver, by express language or necessary implication from the document itself, which we conclude is required as a matter of law to effect that result.

The difficult question before us concerns the generally familiar problem of the tension between a governmentally mandated right, on the one hand, and the attempt of individuals to regulate their own affairs, on the other. In resolving that issue in the present context, we are strongly influenced by the fact that the right involved--that is, the one to modification of an existing alimony award in the light of changing circumstances--has been established by the legislature in the broadest and most compelling terms. Section 61.14, Florida Statutes (1981), which has been in effect in virtually the identical form since the mid-1930's, provides:

(1) When a husband and wife have entered or hereafter enter into an agreement for payments for, or instead of, support, maintenance or alimony, whether in connection with an action for divorce or separate maintenance or with any voluntary property settlement or when a husband is required by court order to make any payments to his wife, and the circumstances of the parties or the financial ability of the husband has changed since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application or in which * * *

the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance or alimony, and the court has jurisdiction to make orders as equity requires with due regard to the changed circumstances and the financial ability of the husband, decreasing or increasing or confirming the amount of separate support, maintenance or alimony provided for in the agreement or order.

* * *

(3) This section is declaratory of existing public policy and laws of this state which are hereby confirmed in accordance with the provisions hereof. It is the duty of the circuit courts to construe liberally the provisions hereof to effect the purposes hereof. [emphasis supplied.]

While it is firmly established in Florida that the availability of statutory modification is indeed subject to being waived, Lee v. Lee, 157 Fla. 439, 26 So.2d 177 (1946); Stebbins v. Stebbins, 435 So.2d 383 (Fla. 5th DCA 1983); Jaffee v. Jaffee, 394 So.2d 443 (Fla. 3d DCA 1981); Turner v. Turner, 383 So.2d 700 (Fla. 4th DCA 1980), pet. for rev. denied, 392 So.2d 1381 (Fla.1980), the legal requirements for its accomplishment have not previously been articulated. In undertaking that task, as is necessary to resolve the present controversy, we conclude that the force of the statutory admonition dictates that 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. This, or a close variation, is the rule which has been adopted as to this precise issue in states which, like ours, are willing to recognize the validity of such a waiver in appropriate circumstances. ¹ See Garcia v. Garcia, 232 Ga. 869, 209 S.E.2d 201 (1974); McClain v. McClain, 241 Ga. 422, 246 S.E.2d 187 (1978); Varn v. Varn, 242 Ga. 309, 248 S.E.2d 667 (1978); ² Dull v. Dull, 73 Ill.App.3d 1015, 29 Ill.Dec. 864, 392 N.E.2d 421 (1979). It is also the principle applied to analytically indistinguishable situations which involve alleged contractual waivers of other statutorily created marital rights. Thus, in the leading case of Girard v. Girard, 29 N.M. 189, 221 P. 801 (1923), the court said, in rejecting the contention that a separation agreement waived the wife's statutory right of inheritance:

We set off to consider such contract with the well-established rule of construction in mind that, in instances of this kind, where it is sought to deprive either husband or wife of property rights growing out of the marital relation, courts will go no further than the language of the contract extends; they will not come to the aid of such contracts so as to deprive either spouse of such rights unless there is a clear and unmistakable intention to barter them away, and, to reach such a conclusion, the contract must not be of doubtful interpretation, but must, by express terms or by necessary implication, clearly so provide. 30 C.J. 646; Jones v. Lamont, 118 Cal. 499, 50 Pac. 766, 62 Am.St.Rep. 251; In re Peet's Estate, 79 Iowa, 185, 44 N.W. 354; Baughman v. Baughman, 283 Ill. 55, 119 N.E. 49, Ann.Cas.1918E, 895; Richardson v. De Giverville, 107 Mo. 422, 17 S.W. 974, 29 Am.St.Rep. 426.

Necessary implication, in the sense that it is here used, means so strong a probability of intention that an intention to the contrary or otherwise than that imputed to appellant cannot be reasonably supposed.

221 P. at 803. Accord, In re McNutt's Estate, 36 Cal.App.2d 542, 98 P.2d 253 (1940); see In re Colaci's Estate, 288 N.Y. 158, 42 N.E.2d 466 (1942); Application of Curran, 274 App.Div. 250, 80 N.Y.S.2d 421 (1948).

It is clear that the lengthy, diffuse, and, on the present issue, wholly inconclusive agreement before us fails completely to meet this test. The mass of boiler plate language ³ upon which the husband relies, ⁴ This holding is supported by comparing the amorphous terms of the instant agreement with the definite ones in the Florida cases which have found a waiver of modification. In this regard, the supreme court decision in Lee is undoubtedly the most significant. The husband strongly contends--and the trial court agreed--that the fact that paragraph 32 of the Bassett agreement ⁵ is identical to a portion of the final decree in Lee requires affirmance. We think otherwise. In our view, the significant factor in the Lee agreement was the provision for a sliding scale of alimony, which included a maximum amount, related to any increments in the husband's future income. Thus, Stephenson v. Stephenson, 408 So.2d 730 (Fla. 1st DCA 1982), states that

does no more than express an integration and finalization of the Bassetts' agreement to terminate their marriage and resolve its then-existing financial ramifications. It did not--certainly not with the requisite clarity--accomplish the quite different result of ousting the court of its mandated authority to consider their future situation in the light of the changes effected by advancing years, in this case, by almost thirty of them. See Wolfe v. Wolfe, 424 So.2d 32, n. 1 (Fla. 4th DCA 1982) ("in such agreements between spouses, if the parties desire that the wife be paid alimony without the payments being modifiable, they should express it.")

[i]n Lee, the parties agreed the husband would, "during his life" pay alimony based upon a complicated schedule which varied with the husband's ability to produce income. Based on the entirety of the circumstances, the court noted the only logical construction of the stipulated settlement was that the parties had "forever settled" the amount the wife would receive. [Emphasis supplied.]

408 So.2d at 731. See also Turner v. Turner, supra. The Bassett agreement contains no equivalent to the thus-decisive aspect of Lee. ⁶ The generalized language which remains, even including paragraph 32, is no more than what the Illinois court in Dull, supra, accurately characterized as "precatory only," 392 N.E.2d at 424, and therefore insufficient to preclude modification. Compare also Eddings v. Eddings, 230 Ga. 743, 199 S.E.2d 255 (1973) (cited in Turner; totality of language sufficient to indicate waiver) with McClain v. McClain, supra (terms insufficient for valid waiver).

The court of appeal cases reveal the insufficiency of the agreement even more The parties agree that neither shall file any modification proceedings as to alimony or support matters herein based on an increase of the income of either party.

clearly. Thus, in Stebbins, the agreement provided:

435 So.2d at 384. In Turner, the language was as follows:

It is the intent of the parties that each shall waive, and each does hereby waive, any right to apply for an increase or decrease in the permanent alimony provided by this Agreement, each intending to establish irrevocably as the alimony which the Husband shall pay to the Wife those payments and transfers set forth in this Agreement.

383 So.2d at 703. In Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981), the court observed:

The agreement, which provided for an alimony award, specifically provided that the agreement was to be non-modifiable and that the wife waived or released any right to alimony modification.

392 So.2d at 986. In Jaffee, the parties agreed:

The parties acknowledge that the Wife is a trained registered nurse with supervisory experience, and in the event that the Wife should resume her nursing...