Petracca v. Petracca

• Decision Date: 18 February 1998
• Docket Number: No. 96-3603,96-3603
• Citation: 706 So.2d 904
• Parties: 23 Fla. L. Weekly D481 Carole H. PETRACCA, Appellant, v. Luca R. PETRACCA, Appellee.
• Court: Florida District Court of Appeals

Page 904

706 So.2d 904

23 Fla. L. Weekly D481

Carole H. PETRACCA, Appellant, v. Luca R. PETRACCA, Appellee.

No. 96-3603.

District Court of Appeal of Florida,

Fourth District.

Feb. 18, 1998.

Norman D. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., Pompano Beach, for appellant.

Mark H. Goldberg of Hartman & Goldberg, Cooper City, for appellee.

FARMER, Judge.

The issue presented in this appeal is whether an agreement settling dissolution of marriage litigation is subject to a "fair and reasonable" determination by the trial judge under Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). We hold that it is not under the facts and circumstances of this case and affirm the trial judge on that issue. There is an ambiguity in the agreement, however, and so we remand the case to the trial court for resolution of the parties' actual intent as regards the subject provision.

Because the background for an agreement is usually indispensable to an understanding of it, we begin with the history of this litigation. Represented by experienced counsel, the wife filed this petition for dissolution of marriage in June 1994. The husband appeared through his own counsel shortly thereafter. From that point on, the battle raged. In the next two years the combatants filed nearly 70 substantive motions, including four attempts to have the husband held in contempt, and one appeal.

Many of these motions were directed to discovery, including one by the wife to have her expert inspect and value land, and another by the husband seeking to have her provide handwriting exemplars. The wife's pretrial witness list (filed some eight months before the settlement) names a CPA to testify (presumably as to the husband's financial interests). The case was set for trial on five separate occasions, the last scheduled to begin little more than two weeks from the day the parties announced a settlement on the record (apparently at a deposition). Thus even in this day of overheated divorce litigation, the battle in this case was fierce.

Turning to the settlement itself, the parties announced it before a court reporter whose transcribed notes are part of the record. After going through the terms of the settlement item by item, each counsel agreed on the specific provisions in the presence of the parties themselves. At that point each party's lawyer examined that party under oath to establish assent to the agreement. The wife testified as follows:

COUNSEL: And you have participated and assisted in the negotiation which led to this settlement we just placed on the record. Correct?

WIFE: Correct.

COUNSEL: You understand the settlement?

WIFE: Correct.

COUNSEL: You intend to be bound by it?

WIFE: Correct.

COUNSEL: You entered into freely--you entered into it freely and voluntarily and after advice of counsel?

WIFE: Yes.

COUNSEL: You understand this is a complete and final resolution of this case?

WIFE: What has been stated so far?

COUNSEL: Yes.

WIFE: Yes.

The significance of this testimony, of course, needs no comment.

Just two weeks after the settlement her original lawyer moved for leave to withdraw, citing irreconcilable differences. Soon a new lawyer appeared on her behalf and filed a motion to invalidate the agreement. After first setting out what can be characterized only as allegations that the parties now dispute one of the settlement's terms, the wife then sets forth in great detail why her analysis of the disputed provision should be accepted. ¹ Her version failing, she then appears to suggest that the whole thing should be called off. She argues that the absence of an agreement on the disputed provision can mean only the lack of an entire agreement between the parties. Her motion closes with the following:

"It must be remembered that the agreement should be subject to the approval of the Court, and if the agreement either plunges this petitioner into poverty, or leaves the parties in a position monitarily [sic] which would be completely inequitable, which is the case herein, the Court should dissaprove [sic] the agreement in its entirety!"

The motion ends with a plea ad misericordiam to let her out of the bargain or rewrite it to suit her contended version of the parties' actual intent. It is this motion that, she argues, authorizes a judge to set aside a litigation settlement agreement reached just before trial and that requires an evidentiary hearing on the motion.

Her primary emphasis is on Casto v. Casto, 508 So.2d 330 (Fla.1987). That case, she argues, empowers judges to set aside a litigation settlement agreement that makes an "unfair or unreasonable provision for the [challenging] spouse." Casto does not stand in isolation; it is only the latest in a line of cases including Belcher v. Belcher, 271 So.2d 7 (Fla.1972); Posner v. Posner, 233 So.2d 381 (Fla.1970); and Del Vecchio v. Del Vecchio, 143 So.2d 17 (Fla.1962). It is impossible to understand Casto without first considering its predecessors.

The earliest case, Del Vecchio, concerned the validity of an agreement between spouses, reached before marriage, disposing of property and other rights in the event of death. After the husband died, the widow sought to set aside the agreement on the grounds that it was unfair and made without a fair and full disclosure of his financial means. The supreme court held that:

"[a] valid antenuptial agreement contemplates a fair and reasonable provision therein for the wife, or, absent such provision, a full and frank disclosure to the wife, before the signing of the agreement, of the husband's worth, or, absent such disclosure, a general and approximate knowledge by her of the prospective husband's property....

"If the provision made by the agreement is not fair and reasonable then it should be made to appear that the wife, when she signed, had some understanding of her rights to be waived by the agreement. In any event she must have signed freely and voluntarily, preferably, but not necessarily a required pre-requisite, upon competent and independent advice."

143 So.2d at 20. Later in the opinion, the court expressed the following policy for its decision:

"The relationship between the parties to an antenuptial agreement is one of mutual trust and confidence. Since they do not deal at arm's length they must exercise a high degree of good faith and candor in all matters bearing upon the contract. The courts will no longer indulge the archaic presumption of dominance by the husband but they will scrutinize such agreements and will require good faith disclosure by the prospective husband of the material facts relating to the character and value of his property showing that the prospective bride possessed such general and approximate knowledge of his property as to enable her to reach an intelligent decision to enter into the agreement." [emphasis supplied]

143 So.2d at 21.

We note the narrowness of this holding. It is not that all unfair prenuptial agreements are against public policy. Instead, the court has held that only those unfair agreements reached without sufficient knowledge of assets are against public policy. The reasonableness of the disposition of property is thus important only if it was the result of assisted ignorance of financial resources. In other words a spouse could enforce a property disposition that is unfair but voluntarily made with full knowledge.

In Posner, a prenuptial agreement had purported to set the disposition of property and support in the event of divorce. The contention was that such agreements were void as against public policy because of their destructive effects on the institution of marriage. In rejecting that argument and upholding the general validity of such agreements, the Posner court stated the following:

"If such an agreement is valid when tested by the stringent rules prescribed in Del Vecchio v. Del Vecchio, supra, 143 So.2d 17, for ante- and post-nuptial agreements settling the property rights of the spouses in the estate of the other upon death, and if, in addition, it is made to appear that the divorce was prosecuted in good faith, on proper grounds, so that, under the rules applicable to postnuptial alimony and property settlement agreements referred to above, it could not be said to facilitate or promote the procurement of a divorce, then it should be held valid as to conditions existing at the time the agreement was made."

233 So.2d at 385. The import of Posner is to remove the former public policy against this kind of prenuptial agreements addressing property and support dispositions upon divorce. It also makes clear, however, that such agreements are subject to the principles of Del Vecchio.

Belcher involved a property agreement reached after marriage and also after the parties had become estranged and separated. The husband had sought to contract away his obligation to support his spouse while separated. The question was whether the husband can, by a prior lump sum payment, buy out of his obligation to pay alimony during a separation without a divorce. 271 So.2d at 10. In deciding the issue the court noted that the state is an interested party in the matter of support of a wife during marriage, and that a postnuptial contract respecting such support is subject to Florida law making the husband responsible for support during marriage. 271 So.2d at 9. The court determined that the husband could not avoid his obligation to support his wife during the separation, explaining that "indeed post-nuptial settlement agreements are regularly approved upon meeting proper requirements of disclosure and fairness." 271 So.2d at 10. But, the court added, "[t]his holding does not affect the validity of the antenuptial contract in its other respects, in which it is tested under Del Vecchio and Posner." 271 So.2d at 10-11. Belcher is of course primarily concerned with the husband's obligation of support during a separation without divorce, but it also continues Del Vecchio and...