Pipitone v. Pipitone
| Decision Date | 28 August 2009 |
| Docket Number | No. 2D08-5032.,2D08-5032. |
| Citation | 23 So.3d 131 |
| Parties | Christine Rose PIPITONE, n/k/a Christine Diaz, Appellant, v. Charles Anthony PIPITONE, Appellee. |
| Court | Florida District Court of Appeals |
Christine Diaz, f/k/a Christine Pipitone, appeals a postjudgment order denying her motion to enforce the final judgment of dissolution of marriage to Charles Pipitone, and the incorporated marital settlement agreement (MSA). The trial court erroneously ruled that the MSA provides the exclusive means available to enforce payment of lump sum alimony. We reverse.
We review the interpretation of the MSA de novo. See Johnson v. Johnson, 848 So.2d 1272, 1273 (Fla. 2d DCA 2003). As relevant here, the MSA provides as follows:
VI. ALIMONY.
As and for non-modifiable lump sum alimony, the Husband shall pay to the Wife the sum of $100,000.00 at the rate of $2,083.33 per month for forty-eight (48) months. Said payment shall commence on May 15, 2006, and shall continue to be paid on the 1st day of each month thereafter for the next forty-seven (47) consecutive months. Time is and shall be of the essence regarding the delivery of these payments. Said alimony payment is taxable to the Wife and deductible by the Husband for Federal Income Tax purposes.
As and for additional non-modifiable lump sum alimony, the Husband shall pay to the Wife the sum of $75,000.00 at the rate of $1,100.00 per month for sixty-eight plus (68 + ) months. Said payment shall commence on May 15, 2006, and shall continue to be paid on the 1st day of each month thereafter for the next sixty-seven (67) months, plus a final partial payment thereafter, until paid in full. Said alimony payment is taxable to the Wife and deductible by the Husband for Federal Income Tax purposes. The parties specifically agree that this lump sum alimony amount is in consideration for the Husband's one-half (1/2) obligation on the Home Equity Line of Credit, for which the Wife is taking full responsibility hereunder, attendant to the marital residence located at 152 Leland Way, Marco Island, Florida.
All alimony payments required herein shall be made through the Court Registry System.
By use of the term "non-modifiable" herein, the Husband acknowledges there are no circumstances which will provide him an excuse not to pay these sums to the Wife. If she dies, he shall pay her Estate; if he dies, his Estate shall pay her; and if she remarries or cohabitates in a marriage-like relationship, he still shall be obligated to pay the alimony described hereinabove. The Wife acknowledges there are no circumstances under which she may seek a higher monthly payment or a payout for a longer duration.
The Wife may secure these alimony obligations by placing a lien against the non-real estate assets (including all equipment and inventory, but excluding cash receivables) owned by Marco Cabinets, Inc. Any and all expenses attendant to this lien(s) shall be borne by the Wife.
. . . .
XX. CHILD SUPPORT, DAY CARE & HEALTH INSURANCE.
The parties have each filed Financial Affidavits with the Court and the parties agree that the Husband shall pay to the Wife the sum of $450.00 per child, per month, for a total of $1,800 per month, beginning May 1, 2006. Said amount shall be paid and delivered to the Wife no later than the 15th day of each month, until such time as the children reach the age of majority, become emancipated, die or graduate high school whichever occurs later. Said payments shall be paid directly to the Wife. Time is and shall be of the essence with respect to these payments.
(Emphasis added.)
Mr. Pipitone is in arrears. Thus, Ms. Diaz asked the trial court to compel payment, to hold Mr. Pipitone in contempt, to award her "other such relief as is proper," and to award her attorney's fees. In denying relief, the trial court ruled that the MSA "provides the Former Wife with the exclusive remedy regarding enforcement of lump sum alimony." Ms. Diaz argues that the lien provision of the MSA is not her exclusive remedy; she should be allowed to pursue other remedies such as a money judgment and contempt. Mr. Pipitone agrees that the trial court erred in concluding that the MSA provides the exclusive remedy. He argues, however, that contempt is not an available remedy.
The MSA provides that Ms. Diaz may secure her alimony payments through a lien against various non-real estate assets of Mr. Pipitone's business. Apparently, she did not do so. Had she pursued a lien, Ms. Diaz could have foreclosed to recover the arrearages. See Black v. Miller, 219 So.2d 106, 109 (Fla. 3d DCA 1969) (); cf. Partridge v. Partridge, 912 So.2d 649, 650 (Fla. 4th DCA 2005) (). But, she was not obligated to pursue this remedy.
In the MSA, Ms. Diaz and Mr. Pipitone chose the word "may," not words of exclusivity such as "shall," "must," or "may only." See, e.g., Granados Quinones v. Swiss Bank Corp., S.A., 509 So.2d 273 (Fla.1987) (); Am. Boxing & Athletic Ass'n, Inc. v. Young, 911 So.2d 862, 865 (Fla. 2d DCA 2005) (contrasting "may" with "must" and "shall"); cf. Regal Kitchens, Inc. v. O'Connor & Taylor Condo. Constr., Inc., 894 So.2d 288, 291 (Fla. 3d DCA 2005) (). Their agreement established a way that Ms. Diaz could ensure alimony payment. The lien remedy, therefore, is not exclusive. See id. at 291-92. The trial court erred in ruling to the contrary. We must, therefore, reverse and remand for further proceedings. Because lump sum alimony can pose seemingly insoluble problems in the context of enforcement proceedings,1 we offer further guidance to the trial court.
The MSA provides two nonmodifiable amounts of lump sum alimony payable in monthly installments. For federal income tax purposes, the payments are income to Ms. Diaz and deductions to Mr. Pipitone. The $75,000 amount is consideration for Ms. Diaz's assumption of Mr. Pipitone's credit line obligation. This amount reflects an equitable distribution of property; contempt is not a remedy available for nonpayment. See Cone v. Gillson, 861 So.2d 1210, 1210 (Fla. 2d DCA 2003). Ms. Diaz agrees. The MSA, however, does not characterize the $100,000 amount. Ms. Diaz contends that it is for support, and that contempt is an available remedy for nonpayment. See Bongiorno v. Yule, 920 So.2d 1209, 1210 (Fla. 1st DCA 2006) ().
Lump sum alimony may provide for equitable distribution of property or for support. Miulli v. Miulli, 832 So.2d 963 (Fla. 2d DCA 2002); Noe v. Noe, 431 So.2d 657, 658 (Fla. 2d DCA 1983). The remedies available to enforce payment depend on the characterization of the alimony. "Alimony payments [for support], even though they be lump sum payable in installments, are enforceable by contempt proceedings." English v. Galbreath, 462 So.2d 876, 877 (Fla. 2d DCA 1985) (citing Howell v. Howell, 207 So.2d 507 (Fla. 2d DCA 1968)). Alternatively, a trial court may award a money judgment for default, although contempt is the usual remedy. Robinson v. Robinson, 154 Fla. 464, 18 So.2d 29, 30 (1944) (citing Vinson v. Vinson, 139 Fla. 146, 190 So. 454 (1939)). Payments for equitable distribution, on the other hand, are not enforceable by contempt, Cone, 861 So.2d at 1210, "but only by the usual remedies available to a creditor against his debtor." Howell v. Howell, 207 So.2d 507, 510-12 (Fla. 2d DCA 1968); see also Masterman v. Masterman, 835 So.2d 1261, 1261 (Fla. 2d DCA 2003); Bongiorno, 920 So.2d at 1210 (); Veiga v. State, 561 So.2d 1335, 1336 (Fla. 5th DCA 1990) () (citing Underwood v. Underwood, 64 So.2d 281 (Fla.1953); Howell, 207 So.2d 507); Rosenberg v. Rosenberg, 452 So.2d 620, 621 (Fla. 3d DCA 1984).
Ordinarily, the trial court specifies whether lump sum alimony is for support or for equitable distribution. See Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004). Where, as here, the parties' court-approved MSA does not specify the nature of the lump sum alimony, the court must make the characterization in the context of this enforcement proceeding. Substance, not form, controls. See Salomon v. Salomon, 196 So.2d 111, 113 (Fla.1967); Underwood, 64 So.2d at 288; Rubio v. Rubio, 347 So.2d 1093, 1095 (Fla. 2d DCA 1977). The trial court should assess whether (1) alimony payments are made in exchange for a property interest, (2) the payments are modifiable, (3) the payments terminate upon remarriage or death, and (4) the payments are deductible from the payor's federal income tax and taxable to the payee. See Braswell v. Braswell, 881 So.2d 1193, 1198 (Fla. 3d DCA 2004).
A conclusive test to determine whether periodic payments are nonmodifiable property payments or modifiable support payments examines whether they are made in exchange or consideration for a transfer of property interests. Jantzen v. Cotner, 513 So.2d 683 (Fla. 3d DCA 1987). "For an award of money to be considered a property settlement and not alimony [for support] it must clearly appear to be so from the final judgment." Goerlich v. Goerlich, 358 So.2d 895, 896 (Fla. 2d DCA 1978) (citing Brisco v. Brisco...
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