Howard v. Howard

• Decision Date: 11 April 1985
• Docket Number: No. AW-205,AW-205
• Citation: 10 Fla. L. Weekly 938,467 So.2d 768
• Parties: 10 Fla. L. Weekly 938 Sarah L. HOWARD, Appellant, v. Mark S. HOWARD, Appellee.
• Court: Florida District Court of Appeals

Page 768

467 So.2d 768

10 Fla. L. Weekly 938

Sarah L. HOWARD, Appellant, v. Mark S. HOWARD, Appellee.

No. AW-205.

District Court of Appeal of Florida First District.

April 11, 1985.

William H. Maness, of Maness & Kachergus, Jacksonville, for appellant.

Peter J. Kellogg, of Grissett, Humphries & Kellogg, Jacksonville, for appellee.

ZEHMER, Judge.

Sarah L. Howard (wife), appealing a final judgment of dissolution of marriage, raises ten issues, most of which stem from the court's refusal to enforce, by incorporation into the final judgment, the agreement of the parties manifested in two documents signed by them. We affirm in part and reverse in part.

Mr. and Mrs. Howard were married for eighteen years and had two minor children. They separated May 14, 1982, eighteen months prior to the entry of final judgment of dissolution. On May 26, they drafted a handwritten agreement concerning support for the wife and children and the right to use certain jointly owned property. That agreement concluded with the phrase, "Agreement to be renegotiated after six months." The wife submitted the written document to an attorney for review and drafting into a formal document. Three months later, in separate visits to the attorney's office, the parties signed the resulting typewritten agreement, which was entitled "Separation Agreement." The original agreement was untitled and the husband did not have a copy when he reviewed and signed the typed document. The typed agreement contains several provisions that significantly differ from wording in the handwritten agreement. The renegotiation provision was revised to read, "The parties agree that this agreement may be renegotiated six months from the date of this agreement if either party feels any changes are needed."

In her counterpetition for dissolution, the wife requested that the court incorporate all provisions of the typewritten "Separation Agreement" into the final judgment. The husband requested that the typewritten contract be reformed to reflect the actual intent of the parties as revealed in the wording of the handwritten document on the grounds that "the former attorney for the wife ... through inadvertence, mistake or otherwise prepared the typed version of the separation agreement upon which the wife relies in a fashion inconsistent with the handwritten agreement of the parties."

The court granted reformation and the wife does not challenge that ruling on appeal. However, the court found the reformed agreement to be ambiguous, received parol evidence of the parties' meaning and intent, and ruled that the agreement was not a final property settlement agreement and was not binding for purposes of entering final judgment. The final judgment gave the wife, as lump-sum alimony, the husband's interest in jointly owned stock, declined to order either party to contribute to private-school tuition expenses for one of the couple's children, and granted partition and sale of a jointly owned beach property. The court, further, awarded the wife exclusive possession of the marital home for the care and support of the two minor children, but provided that such use and possession would terminate "upon the wife's remarriage or the occupation of the marital home by another adult of the opposite sex."

Initially, the wife complains of the court's reliance on parol evidence as the basis for not enforcing all terms of the reformed agreement. Although an instrument may be reformed if it does not accurately set forth the terms of the prior agreement which it was intended to express, it must appear that the instrument did not represent the agreement of the parties at the time it was executed. 76 C.J.S., Reformation of Instruments, § 20 (1952); Heisler v. Florida Mortgage Title & Bonding Co., 105 Fla. 657, 142 So. 242 (1932). As a general rule, if the written agreement is ambiguous, so that the intent of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence showing the facts and circumstances surrounding the making of the agreement and the objects sought to be accomplished may be received to assist the court in properly interpreting the agreement. J.S. Michael Co. v. Rayonier, Inc., 212 So.2d 824 (Fla. 1st DCA 1968). Parol evidence is admissible to explain an ambiguity or to aid in determining the intent of the parties when it is shown that the evidence is not inconsistent with the express terms and purpose of the agreement. Itvenus, Inc. v. Poultry, Inc., 258 So.2d 478 (Fla. 3d DCA 1972), 85 Fla.Jur.2d, Family Law, § 385. The construction placed by the court on an ambiguously worded agreement will be sustained on appeal unless shown to be clearly erroneous. Albert v. Albert, 186 So.2d 809 (Fla. 3d DCA 1966).

Since the negotiation provision of the handwritten contract was ambiguous, the court properly admitted testimony in order to determine whether the parties intended the contract as a final property settlement that could be renegotiated in six months only by mutual consent, or whether they intended it as a temporary separation agreement that would terminate six months from the date of signing, absent renegotiation. The husband testified that the handwritten agreement signed nearly ten months before the petition for dissolution was not intended as a...