Urbanek v. Urbanek, s. 84-1870

• Decision Date: 22 January 1986
• Docket Number: Nos. 84-1870,85-183,s. 84-1870
• Citation: 484 So.2d 597,11 Fla. L. Weekly 251
• Parties: 11 Fla. L. Weekly 251 August URBANEK, Appellant/Cross Appellee, v. Marilyn URBANEK, Appellee/Cross Appellant.
• Court: Florida District Court of Appeals

Page 597

484 So.2d 597

11 Fla. L. Weekly 251

August URBANEK, Appellant/Cross Appellee, v. Marilyn URBANEK, Appellee/Cross Appellant.

Nos. 84-1870, 85-183.

District Court of Appeal of Florida,

Fourth District.

Jan. 22, 1986.

Motions for Rehearing, Certification

and Rehearing En Banc Denied

March 26, 1986.

James P. O'Flarity of Law Offices of James P. O'Flarity, West Palm Beach, and William H. Lefkowitz of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauderdale, for appellant/cross appellee.

Larry Klein of Klein & Beranek, P.A., and Metzger & Sonneborn, West Palm Beach, for appellee/cross appellant.

HERSEY, Chief Judge.

August Urbanek, former husband, appeals certain aspects of the final judgment dissolving his marriage to Marilyn Urbanek and various post-judgment orders.

Two weeks prior to the marriage of the parties in 1979 they entered into an antenuptial agreement, which is the focus of the principal issues on appeal. At the time of the marriage the husband was a fifty-nine-year-old self-made real estate developer and investor with a net worth of approximately $25,000,000, which had increased to $30,000,000 at the time of final hearing. The wife was a twenty-five-year-old aspiring singer and actress with a net worth of $36,000. In October 1982 the parties adopted a child born in March of that year. In May of 1983 the husband moved out of the marital home and petitioned for dissolution.

At the final hearing evidence was introduced, which was to some extent disputed, that the wife had been diagnosed as having multiple sclerosis and that, in order to provide for her medical care and other necessities during her twenty-year life expectancy, an award having a present money cost of $474,517 would be required.

The antenuptial agreement provided that, in the event of dissolution of the marriage, a lump sum payment would be made to wife, the amount of which would depend upon the length of the marriage. The four-year term of the marriage entitled the wife to a lump sum payment of $250,000.

In the final judgment the trial court found "that the Wife in fact did freely and voluntarily execute the Antenuptial Agreement and that she well understood that such agreement could be enforceable against her by the Husband." Neither party contests this finding. The judge then "approved, confirmed, ratified and incorporated in this Judgment by reference" the antenuptial agreement and ordered the parties to comply with it, subject, however, to certain exceptions. One of those exceptions was a modification of the agreement to provide for an additional lump sum payment to the wife because:

The now diagnosed multiple sclerotic condition of the Wife constitutes a change in circumstances which warrants a modification of the Antenuptial Agreement to the extent that provision shall be made for the Husband to supply sufficient funds for the medical and attendant care and treatment of the Wife reasonably necessary in the treatment of her illness. The Life Care Plan prepared by Rehabilitation Counsel Paul Deutsch, assuming the Wife having a 20-year life expectancy, has a present money value cost of $474,517. The Court determines that the plan and its cost are reasonable. In view of the age and medical history of the Husband as compared to that of the Wife, it is probable that the Wife will outlive the Husband and to ensure that the Wife will receive the necessary medical attention, it is determined that a lump sum payment of $474,517 shall be made by the Husband to the Wife. Said payment shall be in addition to any lump sum payment provided for in the Antenuptial Agreement.

The parties' agreement, which was found valid and enforceable by the trial court, provides for a lump sum award to the wife in a specified amount. The husband contends, on appeal, that the trial court could not increase this award whether on the basis of changed circumstances or for any other reason because the entitlement to such a lump sum payment is a vested right which is not subject to modification. The wife takes the position that Florida law permits modification of any payments to which the parties have agreed, including lump sum, so long as there has been a change in circumstances.

As an aside, we suggest that an increase in the amount awarded wife does not actually modify (in the sense of divesting her of) her entitlement; it simply constitutes an addition to her entitlement. The controverted issue is whether the "obligation to pay" only a fixed, lump sum award is subject to modification by requiring the payment of additional amounts. The cases do not make this distinction clear. We assume, however, in relying on or distinguishing these cases, that reference to "entitlement" necessarily includes its reciprocal, the "obligation to pay." One further aspect that deserves at least passing reference is that we do NOT deem it a legally significant circumstance whether the "modification" is attempted prior to, at the time of, or subsequent to approval of the agreement by the trial court and its incorporation into the final judgment.

Section 61.14(1), Florida Statutes, provides:

Modification of support, maintenance, or alimony agreements or judgments.

(1) When the parties have entered into, or hereafter enter into, an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party has changed or when the child or children who are beneficiaries of an agreement or court order as described herein have reached the age of 18 years since the execution of such agreement or the rendition of the order, either party may apply to the circuit court of the circuit in which the parties, or either of them, resided at the date of the execution of the agreement or reside at the date of the application, or in which the agreement was executed or in which the order was rendered, for a judgment decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties or the child or children, decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order.

The trial court relied on this provision to "modify" the antenuptial agreement, in effect holding that the statute authorizes modification of lump sum alimony. The cases uniformly hold to the contrary. The rule that emerges from consideration of this issue is that a provision for a lump sum payment, whether by agreement of the parties or by court order, is not subject to modification pursuant to section 61.14. Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976). See also Philipose v. Philipose, 431 So.2d 698 (Fla. 2d DCA 1983) (Since lump sum alimony involves payment of a fixed amount, it is a vested right and, as such, is not subject to modification, even under section 61.14, Florida Statutes). As this court explained in Benson v. Benson, 369 So.2d 99 (Fla. 4th DCA 1979):

We agree with the language of Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958),

Provisions a [sic] of a separation agreement constituting a final settlement of the rights which each party has in property accumulated during their marriage are to be construed in the same manner as any other contract.

Rights in property which have become fixed and vested under the provisions of such agreement should not be disturbed by the courts, except upon proof which would justify modification or cancellation of a contract between strangers. Each of the parties is justified in relying upon the property settlement provisions of a separation agreement in planning the future course of their respective lives. Rights acquired under such agreements cannot be destroyed nor withdrawn by the courts upon the mere representation of either party that further compliance with the contract would prove burdensome or inconvenient. This is particularly true when the agreement has been ratified and confirmed by the court and incorporated in a final decree of divorce. (emphasis supplied)

369 So.2d at 100-101 (footnote omitted).

Appellee seeks to have this court recognize a distinction between a provision for a lump sum payment in an agreement and such a provision contained in a court order for purposes of determining whether the provision is modifiable. However, neither the statute nor the cases make such a distinction. The only significant distinction made in the cases is between lump sum payments (not modifiable) and periodic payments (modifiable), and the cases cited by appellee involve the latter. Although in Benson this court noted that it is "particularly true" that the rights set forth in the parties' agreement could not be modified where the agreement had been approved by a court, such approval was not made a requirement in order for the agreement to be enforceable. In any event, the court here did, in fact, approve the parties' antenuptial agreement and incorporated it into the final judgment, but then improperly proceeded to modify it by awarding the wife additional sums.

There is another reason for holding that modification was impermissible on these facts. The antenuptial agreement provides in the "Whereas" section that "each of the parties has agreed to accept the provisions of this Antenuptial Agreement in lieu of and in full discharge, settlement and...