Child v. Child

• Decision Date: 16 July 1985
• Docket Number: No. 84-2148,84-2148
• Parties: 10 Fla. L. Weekly 1742 Robert D. CHILD, Appellant, v. Robin J. CHILD, Appellee.
• Court: Florida District Court of Appeals

Page 299

474 So.2d 299

10 Fla. L. Weekly 1742

Robert D. CHILD, Appellant, v. Robin J. CHILD, Appellee.

No. 84-2148.

District Court of Appeal of Florida Third District.

July 16, 1985.

Rehearing Denied Sept. 9, 1985.

Schwartz, Steinhardt, Weiss & Weinstein and Mark Weinstein, North Miami Beach, for appellant.

Norman Malinski, Miami, for appellee.

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

SCHWARTZ, Chief Judge.

Both former spouses appeal from respectively adverse rulings of a trial court order on a master's report concerning various disputes as to the enforcement of their three-year old property settlement agreement. We agree with each of the ex-husband's contentions and with neither of the ex-wife's.

I

1. The primary issue involves the portion of the agreement which stated that the parties would equally divide various securities owned by either or both of them. An attached schedule of their personal property included a paragraph entitled "BONDS" which, in turn, contained the following The following bonds are in the names of both husband and wife, to wit:

Ten (10) $10,000.00 par value bonds State of Massachusetts Housing Finance Agency 9.25 coupon due May 15, 2017.

At the foot of the paragraph was the following:

Bond held in escrow at Safra Bank. One-half ( 1/2) interest to be paid to wife as per schedule on bond. One-half ( 1/2) market value of bond to be paid on demand to Robin Joy Child after July 1, 1981.

In 1981, Ms. Child indeed received, in supposed compliance with this provision, a single $5,000 Massachusetts Housing Agency bond. The present controversy is simply whether the quoted statement meant ten $10,000 or $100,000, worth of bonds, as the wife successfully contended below with the result, as ordered by the trial court, that her ex-husband owed her $45,000 more; or, as the husband argues, only $10,000 worth. We find that the record conclusively establishes the correctness of Mr. Child's position.

It is first apparent--directly contrary to the trial court's conclusion that the provision unequivocally provided for a distribution of $100,000 of bonds ¹--that the designation is utterly unclear and uncertain on its face as to the value of the bonds which the parties actually owned and meant to divide. Thus, as in the resolution of what we think is the closely analogous issue of the identification of ambiguous references to property disposed of in a will, extrinsic evidence was required to determine just what was held at the time. See Perkins v. O'Donald, 77 Fla. 710, 727, 82 So. 401 (1919); 18 Fla.Jur. 2d Decedents' Property § 355 (1980); Admissibility of Extrinsic Evidence to Identify Stocks, Bonds, and Other Securities Disposed of by Will, 16 A.L.R.3d 432 (1967). In this instance, the entirely uncontradicted evidence before the master was that Mr. and Mrs. Child in fact held $10,000 par value bonds in two $5,000 certificates; that they did not and had never owned $100,000 in bonds; and thus that Ms. Child was entitled only to what she had already received.

Mr. Child, who is a stockbroker specializing in municipal bonds of this kind, unequivocally so testified and produced a broker's confirmation slip reflecting such a purchase. It appears that in the specialized municipal bond market, as reflected by his testimony and a standard industry publication, bond values are universally referred to in $1,000 par value units, ² no matter what the face value of the particular certificate. (In fact, the Massachusetts Housing Authority has never issued bonds in $10,000 denominations.) This was the reason that, in drawing the list of assets, Child referred, almost as a matter of second nature, to ten thousand dollars of bonds in no less than three different ways ( ten (10) $10,000.00). Since Ms. Child professed no knowledge whatever of the couple's actual Massachusetts Housing Authority bond holdings, there was no other side of this factual "controversy." It must therefore be concluded that the husband's position had been established as a matter of law.

The appellee's argument to the contrary is acknowledgedly based entirely upon the language of the document itself, without reference to the clearly established underlying facts. In attempting to justify the result below, she relies entirely upon the famous rule that an ambiguous contract or agreement must be interpreted against its draftsman. 11 Fla.Jur.2d Contracts § 106 (1979). Since it was her ex-husband who compiled the list, she therefore argues that the uncertainty as to the amount of the bonds must result in the acceptance of her version of the meaning of the phrase. Because, as we have noted, the present problem concerns the mere identification of items as otherwise uncertainly described on a particular schedule, rather than the interpretation of an undertaking, we do not believe that canons of contractual construction are, strictly speaking, applicable to this case at all. Even if they are, however, Ms. Child cannot succeed. The "construction-against-the-draftsman" rule, like all such tenets, is designed as a means to reach the end-all of every problem of contractual interpretation: the intent of the parties. When that intent does not clearly appear from the words of the contract itself--that is, when it is deemed "ambiguous", see Bacardi v. Bacardi, 386 So.2d 1201 (Fla. 3d DCA 1980)--the against-the-drafter rule may be of some value ³ when the extrinsic evidence on the ultimate intent issue is itself inconclusive; it may be decisive when, as in the case of contracts of adhesion such as insurance policies, there is no other evidence at all of intent beyond the words themselves. See Firemans Fund Ins. Co. of San Francisco, Cal. v. Boyd, 45 So.2d 499 (Fla.1950); New York Life Ins. Co. v. Kincaid, 136 Fla. 120, 186 So. 675 (1939). But, just as merely circumstantial evidence must give way in the fact of contrary and conclusive direct evidence as to the ultimate fact, see Alan & Alan, Inc. v. Gulfstream Car Wash, Inc., 385 So.2d 121 (Fla. 3d DCA 1980), the adverse construction principle cannot prevail, and indeed does not even come into play, when, as here, the parties' actual intent has been otherwise conclusively determined. See Walker v. Close, 98 Fla. 1103, 125 So. 521 (1929); L'Engle v. Overstreet, 61 Fla. 653, 55 So. 381 (1911); Brown v. Beckwith, 60 Fla. 310, 53 So. 542 (1910); Dade County v. O.K. Auto Parts of Miami, Inc., 360 So.2d 441 (Fla. 3d DCA 1978), cert. denied, 379 So.2d 207 (Fla.1979). Thus, in West Yellow Pine Co. v. Sinclair, 83 Fla. 118, 90 So. 828 (1922), the supreme court said:

[C]omplainant invokes the rule that the grantors, having chosen the language employed and being responsible for the alleged uncertainty and ambiguity, must suffer the result of having such language construed against them. This theoretically is a perfectly just rule of...