Posted by Nydia Streets of Streets Law in Florida Divorce
When a marital settlement agreement provides that any modifications must be in writing and signed by the parties, this provision will usually be upheld despite any oral agreements subsequently reached by the parties. This was an issue in the case Duchateau v. Duchateau, 5D22-2609 (Fla. 5th DCA June 2, 2023).
The parties originally entered a marital settlement agreement as part of their divorce. Three years later, the former husband moved to set aside the agreement under Florida Family Law Rule of Procedure 12.540. While at a deposition in this post-judgment litigation, the parties reached an agreement which was orally announced and confirmed by the parties, then transcribed by the court reporter. No written agreement ever followed this oral pronouncement. The former husband then moved to enforce the oral agreement and after an evidentiary hearing, the trial court denied the motion. The former husband appealed.
The appellate court focused on its jurisdiction to decide the former husband’s appeal. It noted “Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ix) permits the appeal of nonfinal orders that determine ‘that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed.’ Therefore, our jurisdiction to address the merits of this appeal depends on whether the trial court’s order determined, as a matter of law, that the May 28, 2021 agreement was unenforceable, set aside, or never existed. In Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1182–83 (Fla. 2020), the Florida Supreme Court addressed how to interpret the phrase ‘as a matter of law’ in the context of a rule 9.130 appeal. The court held that for such an order to be reviewable, there must be an express ‘as a matter of law’ determination on the face of the order. Id. at 1182. Further, the reviewing court may not attribute a determination of ‘as a matter of law’ to the order based on its own review of the underlying record. Id.”
The appellate court held there was no express determination in the trial court’s order that its ruling was based on a matter of law. The court concluded “Moreover, on the face of the order, the trial court, following the presentation of evidence, made a factual finding that Former Husband did not prove the exception to the rule that otherwise precludes the oral modification of a written agreement when the written agreement expressly prohibits oral modification.”
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