Opinion
Case No. 2D19-697
04-17-2020
Richard Jon NISHMAN, Appellant, v. Kimberly Patrice STEIN, Appellee.
Michael J. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellant. Eric R. Maier and Michael L. Lundy of Older, Lundy & Alvarez, Tampa, for Appellee.
Michael J. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellant.
Eric R. Maier and Michael L. Lundy of Older, Lundy & Alvarez, Tampa, for Appellee.
SMITH, Judge. In this paternity action, the father, Richard Jon Nishman, challenges the trial court's orders requiring him to pay the temporary attorney's fees of the mother, Kimberly Patrice Stein, arguing Ms. Stein waived all claims for attorney's fees under the parties' mediated Partial Settlement Agreement. The trial court determined that the language in subparagraph "E" of the Agreement was ambiguous but concluded there was no waiver of attorney's fees. We affirm the trial court's orders under the tipsy coachman doctrine, but hold that a party to a paternity action may not waive temporary attorney's fees prior to final judgment. We also hold that subparagraph "E" is not ambiguous where it excepted from the waiver in the parties' dissolution matter claims for parenting plan, time-sharing, and child support matters. We affirm without comment all other matters raised by Mr. Nishman on appeal.
Mr. Nishman challenges the following orders which were entered in the paternity action: the January 23, 2019, order requiring Mr. Nishman to pay attorney's fees, and the February 12, 2019, order requiring Mr. Nishman to pay attorney's fees. The two orders are virtually the same in form and substance and it is presumed the entry of both was in error.
See Miller v. Fla. Ins. Guar. Ass'n, 200 So. 3d 200, 204 (Fla. 2d DCA 2016) (affirming the trial court's denial of fees under the statute even though the trial court incorrectly interpreted the statutes, where the record evidence supported trial court's decision); see also Robertson v. State, 829 So. 2d 901, 906-07 (Fla. 2002) ("The key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.").
I
Mr. Nishman and Ms. Stein share two minor children and lived together as a family for almost a decade. The parties never married. Ms. Stein initially filed a dissolution action against Mr. Nishman, alleging the parties were married under the common law of the State of Colorado, where they previously lived and where the two minor children were born. Mr. Nishman moved to dismiss the dissolution action and filed the instant paternity action. Thereafter, on February 9, 2018, the parties entered into the Agreement, which was ratified by the trial court in both the dissolution and the paternity actions.
The Agreement, which denounces any marriage between the parties, otherwise reads much like a mediated settlement agreement in a dissolution of marriage action with children. The Agreement sets forth the parties' agreement regarding the minor children as to paternity, shared parental responsibility, temporary time-sharing, and temporary child support; allocates property held jointly by the parties; provides for the vacating of the shared residence; and requires the dismissal of Ms. Stein's separately filed petition for dissolution of marriage. The Agreement planned for mediation and the scheduling of a final hearing on the parenting plan, time-sharing and child support in August 2018.
Relevant to this appeal is subparagraph "E" of the Agreement, which provides:
E. SETTLEMENT OF PENDING DISSOLUTION ACTION: The Parents agree that [Ms. Stein] shall execute a Notice of Voluntary Dismissal with Prejudice regarding her pending Petition for Dissolution of Marriage, which shall be delivered to Rich's counsel to hold in trust for filing immediately upon execution
of this Agreement and payment ... Upon receipt of payment, [Ms. Stein] forever waives any and all claims for equitable distribution (including but not limited to any and all claims to the Aralia Way residence, or the Redington Shores residence other than her right to temporarily reside in the Redington Shores residence as set forth in paragraph G below), alimony (of any form or type), attorney's fees or any other possible claim associated with her relationship with [Mr. Nishman], except for timesharing, parenting plan and child support matters as such claims to which are preserved as more specifically set forth below. (emphasis added).
On March 29, 2018, Mr. Nishman filed a motion to establish guidelines for shared parental responsibility and temporary time-sharing, to retain a counselor for the children, and to modify the temporary time-sharing. In his motion, Mr. Nishman also sought "his necessary and reasonable attorneys' fees associated with [his] Motion, to be payable by the Mother, if deemed appropriate." On March 30, 2018, in order to defend the motion, Ms. Stein moved for temporary attorney's fees under section 742.045, Florida Statutes (2017), which governs paternity actions. Over the course of six months between June 2018 and November 2018, three separate hearings—totaling five hours—were held on Mr. Nishman's motion and Ms. Stein's motion for temporary attorney's fees.
Contrary to Mr. Nishman's position that Ms. Stein waived her right to attorney's fees in the Agreement, the trial court found otherwise. The trial court held the language in subparagraph "E" was ambiguous because it could be read to waive all attorney's fees for any possible claim associated with Ms. Stein's relationship with Mr. Nishman or it could be interpreted to waive all claims for attorney's fees, except those arising from matters pertaining to time-sharing, child support, and the parties' parenting plan. Therefore, it determined that the provision was not a full and complete waiver of attorney's fees for the purposes of the parties' paternity action because the language was not clear that the parties intended to waive attorney's fees for time-sharing, child support, and parenting plan matters.
II
Settlement agreements are to be interpreted in accordance with the laws governing contracts. Dogoda v. Dogoda, 233 So. 3d 484, 487 (Fla. 2d DCA 2017) ; see also Gibbs Constr. Co. v. S.L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d DCA 2000) (holding that "when entitlement to attorney's fees is based on the interpretation of contractual provisions as a pure matter of law," an appellate court will undertake a de novo review to determine the appropriate construction of the contract). "[A]n appellate court may undertake an independent assessment of a contractual provision's meaning, including whether it is ambiguous." Nicoletti v. Nicoletti, 901 So. 2d 290, 292 (Fla. 2d DCA 2005) (citing Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1002 (Fla. 2d DCA 1995) ("We begin our analysis by noting that although the interpretation of a covenant not to compete is a matter of law to be resolved by a trial court, an appellate court is nevertheless empowered to undertake an independent assessment of the covenant's meaning.")). Unless there is evidence of the parties' intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning. Dogoda, 233 So. 3d at 487-88 (citing Johnson v. Johnson, 848 So. 2d 1272, 1273 (Fla. 2d DCA 2003) ). Accordingly,
[w]hen possible, courts should give effect to each provision of a written instrument in order to ascertain the true meaning of the instrument. Where the contract is
susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions.
Siegle v. Progressive Consumers Ins. Co., 819 So. 2d 732, 739 (Fla. 2002) (citing Inter-Active Servs., Inc. v. Heathrow Master Ass'n., 721 So. 2d 433, 435 (Fla. 5th DCA 1998) ).
Section 742.045 gives a trial court discretion to award attorney's fees based upon the financial resources of both parties in proceedings involving paternity. We have previously held that because the statute mirrors the attorney's fees provision of section 61.16, Florida Statutes, decisions interpreting section 61.16 are applicable in interpreting section 742.045. B.K. v. S.D.C., 122 So. 3d 980, 982-83 (Fla. 2d DCA 2013) (noting that "not to do so would likely run afoul of equal protection concerns" of parents to children born out of wedlock).
Under section 61.16—and therefore, section 742.045—a party may waive the right to statutory attorney's fees in an agreement, but the explicit language "must clearly and unambiguously express waiver or the language must be such that an interpretation of the agreement as a whole can lead to no other conclusion but waiver." Sasnett v. Sasnett, 683 So. 2d 177, 178 (Fla. 2d DCA 1996) ; see also Walsh v. Walsh, 262 So. 3d 212, 215-16 (Fla. 5th DCA 2018) ; De Campos v. Ferrara, 90 So. 3d 865, 869 (Fla. 3d DCA 2012). An exception to this general rule permitting the waiver of attorney's fees in marital and paternity cases has been enunciated by the Florida Supreme Court, which held that a spouse's claim for temporary attorney's fees under section 61.16 cannot be contracted away or waived before entry of final judgment in marriage dissolution proceedings. Belcher v. Belcher, 271 So. 2d 7, 9 (Fla. 1972) (reasoning that the laws of our state require a husband to provide support for his wife while they are married); see also Lashkajani v. Lashkajani, 911 So. 2d 1154, 1157-58 (Fla. 2005) ; Kirkconnell v. Kirkconnell, 222 So. 2d 441, 442 (Fla. 2d DCA 1969) (holding mother was free to waive alimony claim against father in dissolution case but not child support for the benefit of the parties' minor child); Khan v. Khan, 79 So. 3d 99, 100 (Fla. 4th DCA 2012) ("[A]n agreement of the parties that waives or limits the right to request temporary support and attorney's fees to a spouse in need in a pending dissolution action is a violation of public policy."); cf. § 61.13(1)(a)(1)(a) (requiring father to provide support for his children until they reach the age of majority); Ciociola v. Ciociola, 302 So. 2d 462, 463 (Fla. 3d DCA 1974) ("We think that it has been determined in Florida that a father has an enforceable obligation to support his children irrespective of a judgment of divorce.").
After Belcher, statutes and caselaw regarding the support of minor children were revised to be gender neutral. See Lashkajani, 911 So. 2d at 1157 n.2.
In the instant paternity case, a final judgment of paternity establishing a parenting plan, time-sharing, and support had not been entered at the time of the Agreement, as litigation was not complete. The Agreement afforded only "temporary" time-sharing and "temporary" child support and specifically stated in subparagraph "E" that these claims were "preserved as more specifically set forth below"—wherein the Agreement states the final hearing is to be set six months down the road in August 2018. In light of this court's prior holdings interpreting section 742.045 in accordance with section 61.16, and also because Florida's laws pertaining to child support and temporary support are based upon the guiding "policy of advancing the best interests of the child," we see no reason why the holdings in Belcher and Khan should not apply to the facts of this case to prohibit a waiver of temporary attorney's fees prior to final judgment in a paternity action. See Belcher, 271 So. 2d at 7.
See Rogers v. Wiggins, 198 So. 3d 1119, 1121 n.1 (Fla. 2d DCA 2016) ; B.K. v. S.D.C., 122 So. 3d at 982 ; M.J.I. v. A.J.K., 55 So. 3d 732, 733 (Fla. 2d DCA 2011).
Dep't of Health & Rehab. Servs. v. Privette, 617 So. 2d 305, 307 (Fla. 1993) (citing Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972) ).
Even assuming, arguendo, Florida law allowed parties to contract away and waive temporary attorney's fees prior to entry of a final judgment in a paternity action, the subject waiver did not accomplish this. Subparagraph "E"—"Settlement of Pending Dissolution Action"—begins with the dismissal of Ms. Stein's dissolution action, followed by the waiver of all claims associated with the dissolution action, which include equitable distribution and alimony, among other things. Also included in this litany of waived claims after the term "alimony" is the language: "attorney's fees or any other possible claim associated with her relationship with [Mr. Nishman], except for timesharing, parenting plan and child support matters as such claims to which are preserved as more specifically set forth below." (Emphasis added.)
There can be no question that the parties intended to waive all claims associated with the dissolution action and involving Ms. Stein's relationship with Mr. Nishman. In fact, the other provisions of the Agreement provide for the final disposition and division of their property while they were together, as well as the vacating of their shared residence. And while headings are not necessarily dispositive, "[c]ontractual provisions are construed in the context of the entire agreement .... Courts must strive to read a contract in a way that gives effect to all of the contract's provisions." Retreat at Port Islands, LLC v. Port of Islands Resort Hotel Condo. Ass'n., 181 So. 3d 531, 533 (Fla. 2d DCA 2015) (citations omitted). But see Hinely v. Fla. Motorcycle Training, Inc., 70 So. 3d 620, 624 (Fla. 1st DCA 2011) ("[T]he headings or subheadings of a document do not dictate the meaning of the entire agreement, especially where the literal language of the heading is contrary to the agreement's overall scheme.").
For us to find that the waiver language was ambiguous, as the trial court did, we would have to ignore the word "except" and the remaining language which follows, which is contrary to basic principles of contract interpretation. See Inter-Active Servs., Inc., 721 So. 2d at 435. Here, the waiver language was included under the heading of "Settlement of Pending Dissolution Action." Giving effect to all of the contract provisions in the Agreement and the language in subparagraph "E," it is abundantly clear that the parties intended to carve out and "except" from the waiver claims for time-sharing, parenting plans, and child support, such as the ones before us. See Sasnett, 683 So. 2d at 178 ; cf. Agliano v. Agliano, 605 So. 2d 597, 598 (Fla. 2d DCA 1992) (concluding former wife unequivocally waived right to modify alimony in provision of the parties' marital settlement agreement).
Finally, we note Mr. Nishman, himself, after the Agreement was executed and ratified by the court, sought attorney's fees in his motion for modification of timesharing and other relief. He too understood attorney's fees were not waived, and thus, we find his claims to the contrary disingenuous.
III
We also write here to note the disservice of interrupted and delayed temporary hearings over the course of several months, which does nothing to assist a parent in need of temporary support during the pendency of the proceedings. See George v. George, 32 So. 3d 651, 652-53 (Fla. 2d DCA 2010) (discussing temporary support orders in dissolution proceedings and procedure utilized by trial courts based on the urgency of such matters); Littlejohn v. Littlejohn, 495 So. 2d 271, 272 (Fla. 2d DCA 1986) (noting that due to "the nature of the case, we have expedited our review" of the trial court's denial of the wife's motion for temporary support and attorney's fees). Not to mention that "[t]he rights of children deserve first priority." French v. French, 452 So. 2d 647, 651 (Fla. 4th DCA 1984). "Accordingly, where, as here, custody and visitation are of central concern to the case, the parties would do well to speed up the judicial process." Zeltzer v. Zeltzer, 458 So. 2d 414, 415 (Fla. 4th DCA 1984) (Glickstein, J., concurring) ("Unlike adults, who measure the passing of time by clocks and calendars, children have their own built-in time sense based on the urgency of their instinctual and emotional needs." (quoting Judge John R. Milligan and Ellen Loth, Permanency Placing for Children (A New Ballgame in Appellate Courts), App. Ct. Admin. Rev. 37, 38-9 (1983))).
Ms. Stein's motions for temporary attorney's fees were deferred until the final hearing, which did not conclude until ten months after her first motion was filed. The final hearing, which lasted five hours, was dissected into three separate days over the course of six months. Such a delay runs afoul of the policy of this state to expedite review in domestic matters involving children. See Hoff v. Hoff, 100 So. 3d 1164, 1168 (Fla. 4th DCA 2012) ("The goal of temporary relief hearings, however, is to promote stability in the lives of children while the divorce is pending, not to decide the final outcome .... Contested temporary relief hearings are not and should not be as lengthy as contested final hearings. The parties need to obtain temporary relief expeditiously."); see also Priestes v. Priestes, 549 So. 2d 246, 247 (Fla. 2d DCA 1989) (finding no reversible error where trial court entered order of temporary support in favor of the wife without giving the husband the opportunity to present his case based on the wife being without any kind of support and in the final stages of pregnancy, the order was not per se unreasonable, and the trial court offered to review and possibly modify the order at a later date). Trial courts should therefore do everything within their power and authority to promote a prompt resolution of domestic matters involving parenting plans, time-sharing, child support matters, and other child related matters. See Fla. Fam. L. R. P. 12.200 ; Dep't of Health & Rehab. Servs. v. Privette, 617 So. 2d 305, 307 (Fla. 1993) (explaining that the policy of advancing the best interests of the child "must inform every action of the courts in this sensitive legal area"); Wrona v. Wrona, 592 So. 2d 694, 697 (Fla. 2d DCA 1991) ("These two considerations [the parties' understanding that protracted litigation in dissolution proceedings depletes the amount of money available for future alimony and child support, and also reduces the overall amount of marital property] should be discussed with the parties at an early case management conference whenever the trial court discovers that the parties are about to engage in extensive, avoidable litigation.").
IV
Accordingly, while we find that a spouse's claim for temporary attorney's fees may not be contracted away or waived prior to final judgment in a paternity action, we also find that, based upon the basic principles of contract interpretation, the subject waiver is clear and unambiguous that the waiver does not apply to timesharing, parenting plan, and child support matters. The trial court erred in holding otherwise. However, because the trial court came to the correct conclusion that there was no waiver, we affirm under the "tipsy coachman doctrine." See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (noting that the doctrine allows an appellate court to affirm a trial court's decision that reaches the correct result for the wrong reasons, as long as there is support in the record for reaching the judgment). As to all other matters we affirm without comment.
Affirmed.
NORTHCUTT and KELLY, JJ., Concur.