Cunningham v. Cunningham
| Decision Date | 10 December 1986 |
| Docket Number | No. BH-497,BH-497 |
| Parties | 11 Fla. L. Weekly 2604 Richard W. CUNNINGHAM, Appellant, v. Mary Ruth A. CUNNINGHAM, Appellee. |
| Court | Florida District Court of Appeals |
Zelda J. Hawk, of Zieg, Comfort, Hawk & Castello, Gainesville, for appellant.
Henry L. Gray, Jr., and Anita L. Shepherd, of Chandler, Gray, Lang & Aswell, Gainesville, for appellee.
The former husband, Richard Cunningham, appeals a final order granting the former wife, Mary Ruth Cunningham, modification of the final judgment of dissolution of marriage. On appeal the husband contends that the trial court erred in ruling that the former wife had not waived her right to seek modification of alimony provisions in the parties' settlement agreement. We reverse.
On September 29, 1975, the husband filed a petition for dissolution of marriage. The parties had been married 20 years and had four children. The husband, a neurologist, and the wife, a teacher, executed a settlement agreement regarding the division of the parties' property, custody of the children, alimony, and child support. The agreement recited the "desire and intention" of the parties to finally fix and settle "in all respects and for all purposes their respective present and future property rights, claims and demands in such a manner that any action with respect to said rights, obligations, past, present or future, of either party with respect to the other, be finally and conclusively settled and determined by the Agreement," and that the agreement would "be incorporated in any Final Judgment of dissolution which may be entered in the action for dissolution now pending...."
The agreement contained the following provision requiring the husband to pay alimony (emphasis added):
The Husband shall pay to the Wife for her support and maintenance the sum of One Thousand Dollars ($1,000.00) per month, commencing 1 July 1976. The alimony as specified in this paragraph shall continue until the Wife shall remarry or die, or until the Husband shall die, or until changed as hereinafter provided, whichever contingency shall first occur. At such time as the third child of the parties ... reaches the age of 18 or is no longer living with the Wife, whichever shall first occur, the alimony as provided herein shall automatically be reduced to $750.00 per month. At such time as the youngest child of the parties ... reaches 18 years of age or is no longer living with the Wife, whichever shall first occur, the alimony as provided herein shall further be reduced to $500.00 per month. All parties understand, intend, and agree that the Wife will eventually become self-supporting, particularly as her younger children become adults. The Wife's training, education and work experience are in the field of elementary education and it is anticipated that after a reasonable time, she will be able to regain her certificate for teaching and will be able to earn at least $11,000.00 per year by the time the youngest child of the parties has reached majority. Therefore, it is the intention of the parties that the Husband's obligation to continue to pay alimony following the majority of said child will terminate, assuming that the Wife has not been disabled so as to prevent her from earning such income at that time. It is anticipated that the Wife shall use the eight (8) years between the date of this Agreement and the time such child reaches majority to prepare herself for her eventual self-support and at such time she will have resumed her teaching career, or some other occupation, and will have reached the point where she will be making approximately $11,000.00 per year based on the value of the dollar as of the date of this Agreement. Therefore, the Husband's obligation to pay alimony after the 18th birthday of said child shall terminate unless the Wife demonstrates her inability to earn $11,000.00 per year on today's dollar by reason of health. To the extent that she demonstrates that she is unable to earn such an amount by reason of health, the Husband shall continue to pay alimony at a rate per month which, together with the gross amount earned by the Wife, shall equal $916.00 per month; provided however, that such alimony shall not exceed $500.00 per month. Thereafter, at such time as the Wife regains her capacity to earn the $11,000.00 per year based on today's dollar, alimony shall cease and terminate. In all events, alimony shall completely terminate ten (10) years from date hereof.
The agreement also contained "MUTUAL RELEASES" by which each party did "release the other of and from any claims, demands, dues, debts, rights, or causes of action, excepting a cause of action for dissolution of marriage, which either may have against the other and except such claims, demands, dues, debts or rights as may be provided in this...
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DePoorter v. DePoorter
...to such an alimony award is the intent of the parties as it is revealed by the plain language of the agreement. Cunningham v. Cunningham, 499 So.2d 880 (Fla. 1st DCA 1986); Kenyon v. Kenyon; Mulhern v. Mulhern, 446 So.2d 1124 (Fla. 4th DCA), petition for review denied, 455 So.2d 1033 To sum......
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...v. Bassett, 464 So.2d 1203, 1205 (Fla. 3d DCA 1984). See Lee v. Lee, 157 Fla. 439, 26 So.2d 177, 179 (1946); Cunningham v. Cunningham, 499 So.2d 880, 882 (Fla. 1st DCA 1986). “[I]f the language of the agreement ‘indicates a clear intention by the parties that the agreed-upon provisions for ......
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