Richter v. Richter, 94-3224

• Decision Date: 27 December 1995
• Docket Number: No. 94-3224,94-3224
• Citation: 666 So.2d 559
• Parties: 21 Fla. L. Weekly D50 Sam RICHTER, Appellant, v. Gloria E. RICHTER, Appellee.
• Court: Florida District Court of Appeals

Page 559

666 So.2d 559

21 Fla. L. Weekly D50

Sam RICHTER, Appellant, v. Gloria E. RICHTER, Appellee.

No. 94-3224.

District Court of Appeal of Florida,

Fourth District.

Dec. 27, 1995.

Order Granting Reconsideration

and Vacating Order in Part

Jan. 30, 1996.

A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.

Andrew S. Berman of Young, Berkman, Berman & Karpf, P.A., North Miami Beach, for appellee.

GUNTHER, Chief Judge.

Appellant, Sam Richter, respondent below (Former Husband), appeals a final judgment modifying child support in favor of the appellee, Gloria E. Richter, petitioner below (Former Wife). We agree with Former Husband that the adult child support provision contained within the marital settlement agreement is not judicially modifiable. Thus, we reverse.

The parties entered into a marital settlement agreement and were divorced in 1985. The agreement, which was approved and incorporated into the final judgment, contained the following provision, inter alia, on the subject of child support:

B. Child Support: ... Between the ages of 18 and 21, if the child is enrolled and in residence in a college or university, the Husband will contribute to the Wife two-third ( 2/3) of his normal child support payment for each child ($100.00 weekly) until the child reaches 21, dies, marries, lives by herself (except while in college), becomes emancipated or becomes employed full-time. Otherwise, the child support remains the same as stipulated vis [sic] $150.00 a week each. That is, if the child remains living in Wife's home or does not enroll in a college or university the child support remains at $150.00 weekly each.

Thereafter in 1993, Former Wife petitioned for modification on grounds of increased needs of the minor children and Former Husband's ability to pay due to his post-dissolution good fortune. The parties stipulated to a modification of settlement agreement on all disputed issues except one which was submitted in the form of a question for the trial court's determination, as follows:

WAS THE CHILD SUPPORT AMOUNT AS STIPULATED BY THE PARTIES IN THEIR ORIGINAL AGREEMENT TO BE PAID BETWEEN THE CHILDREN'S AGES OF EIGHTEEN AND TWENTY-ONE SUBJECT TO JUDICIAL MODIFICATION?

Depending on the trial court's determination of the issue presented, the parties had agreed to alternative plans A and B. Both plans provided for a $4,000.00 per month increase in minor child support. Plan A provided for adult child support amount as specifically stated in the original settlement agreement: if the child is enrolled and in residence in college, Former Husband will pay $100.00 weekly until the child reaches twenty-one, dies, marries, lives by herself (except while in college), becomes emancipated or employed full-time; otherwise, $150.00 weekly if the child remains living in Former Wife's home and does not enroll in college. Plan B provided for a two-thirds percentage of the increased minor child support of $4,000.00 per month, or $2,666.67 for each adult child's support.

The trial court found the language in the child support provision unambiguous and answered the above question in the affirmative. As such, the trial court read the language of the child support provision to mean that Former Husband obligated himself to pay "normal" child support payments in the percentages stated post minority until the children reach twenty-one years of age. Thus, Plan B was adopted.

This court's recent decision of Zolonz v. Zolonz, 659 So.2d 451 (Fla. 4th DCA 1995), squarely addresses the issue presented to the trial court. In Zolonz, we were unable to agree with the mother's position that the court has...