Mchugh v. Schmachtenberg
| Decision Date | 28 May 2010 |
| Docket Number | No. 3D08-2508.,3D08-2508. |
| Parties | Sally SCHMACHTENBERG n/k/a Sally McHugh, Appellant,v.Lee C. SCHMACHTENBERG, Appellee. |
| Court | Florida District Court of Appeals |
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Nancy A. Hass, Hallandale, for appellant.
Ross & Girten and Laurie Waldman Ross; Buckner, Shifrin, Rice & Etter and Deanna S. Shifrin, Miami, for appellee.
Before WELLS, CORTIÑAS and SALTER, JJ.
Sally McHugh appeals from an order modifying the child support and permanent periodic alimony awards of a final judgment of dissolution of marriage. We reverse the modification of child support, finding that the marital settlement agreement incorporated into that judgment is clear and unambiguous and in need of no clarification, and that there is no basis in this record to support modification of that award. We reverse the modification of permanent periodic alimony, finding that the lower court erred in determining the amount by which that award was to be modified.
The parties were divorced in December of 2002 following an almost 30-year marriage which produced a single child, a disabled son, 25 years old when the marriage was dissolved. The divorce decree incorporated a mediated marital settlement agreement, which equitably divided the parties' assets and liabilities and provided support for both Ms. McHugh and the parties' adult disabled son. As to Ms. McHugh, the final judgment required Mr. Schmachtenberg to pay permanent periodic alimony in the amount of $5,250 per month:
As to the parties' son, the parties were required to transfer title to a condominium that they owned to a special needs trust so that their son had a place to live. Mr. Schmachtenberg also was required to continue to support his son as he had in the past:
Following the divorce, Ms. McHugh and the Miami-Dade County Guardianship Program were appointed joint guardians of the parties' son and his property.
In October 2006, a little less than four years after the divorce, Mr. Schmachtenberg petitioned for clarification and/or modification of the mediated settlement agreement relating to the support of the parties' son.1 Arguing that increases in his son's expenses were causing friction between the parties, Mr. Schmachtenberg claimed that his continuing obligation to support his son as he had in the past had become vague and ambiguous, justifying either clarification or modification. Mr. Schmachtenberg simultaneously petitioned for modification of the permanent periodic alimony award, claiming only that his current income was “substantially less than the income estimated at the time of the Final Judgment.”
Following a two day trial, the court below entered an order modifying Mr. Schmachtenberg's child support obligation relieving him of his agreed-to obligation to pay for all of his disabled son's expenses not covered by SSI payments. Instead, Mr. Schmachtenberg was ordered to pay all of the mortgage, taxes, insurance, and condominium fees on the condominium in which his son lived and only one-half of his son's uncovered medical, dental, and psychological care. Henceforth, he was relieved of any obligation to pay his son's utilities. Ms. McHugh was ordered to pay the remaining half of her son's medical expenses.
The trial court further modified the child support provisions of the marital settlement agreement to apply the child support guidelines thereby making each party responsible for a portion of their child's support. Relying on income imputed to Ms. McHugh at the time of the parties' 2002 divorce ($18,000 a year from prior employment by Mr. Schmachtenberg), combined with an additional $24,795 a year in imputed “income” from “recurring gifts” from her parents, the court below applied the statutory child support guidelines to order Mr. Schmachtenberg to pay $936 per month in child support and Ms. McHugh to pay $638 per month to support their son. Based on this formulation, the court below concluded that Ms. McHugh would have ample funds to pay for the son's needs and many of his wants, including, for instance, a new computer or cell phone.
The permanent periodic alimony provisions of the final judgment likewise were modified. Based on a determination that Mr. Schmachtenberg's current before tax income was only $124,391, compared with a before tax income of over $300,000 in 2001 (the last full year before the divorce), the court concluded that a substantial change in circumstances had occurred to warrant an alimony modification. Imputing both the amount of income imputed to Ms. McHugh at the time of the divorce some six years earlier ($18,000), and, on the authority of Ordini v. Ordini, 701 So.2d 663 (Fla. 4th DCA 1997), an additional $2066 per month representing the average amount given to her over the years by her parents, the court modified Ms. McHugh's alimony award from $5250 per month to $1800 a month, retroactive to the date of the order of modification. Ms. McHugh was also ordered to repay Mr. Schmachtenberg for any overpayment of alimony during pendency of these proceedings.
For the following reasons, we reverse both the modification of the child support provisions of the parties' settlement agreement and, in part, the modified alimony award.
We reverse the order “clarifying” the child support provisions of the final judgment because the mediated settlement agreement incorporated into that judgment is clear and unambiguous and in need of no clarification. We also find no basis in this record to support modification of that award.
A marital settlement agreement that has been ratified by the trial court “is subject to interpretation like any other contract.” Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996); see Levitt v. Levitt, 699 So.2d 755, 756 (Fla. 4th DCA 1997) (). Accordingly, terms contained in such agreements should be given their plain meaning and “not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation.” Ballantyne, 666 So.2d at 958; see Levitt, 699 So.2d at 757 (); see also Andersen Windows, Inc. v. Hochberg, 997 So.2d 1212, 1214 (Fla. 3d DCA 2008) ( ) (citation omitted).
In this case, no ambiguity was alleged to exist. Rather, the petition for modification alleges only that Mr. Schmachtenberg's contractual obligation to financially support his son, as he had “done in the past,” had gradually increased over time, causing friction between the parties:
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