DEENA DOUGLAS, APPELLANT,
v.
JAMES E. DOUGLAS, APPELLEE
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The court held that the appellee's obligation to make mortgage payments under the property settlement agreement was in the nature of support and could not be excused by the appellant's alleged violation of a cohabitation clause.
[1] A property settlement agreement provision for mortgage payments on the marital home may be construed as support, particularly child support, and thus cannot be excused by…
[2] A party may not unilaterally ignore financial obligations under a settlement agreement due to another party's breach; instead, the party must seek enforcement or modifica…
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Join FLexlaw to unlock all legal intelligenceThe parties' property settlement agreement required the appellee to make mortgage payments on the marital home. The lower court excused this obligatio…
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PER CURIAM.
We reverse the appealed order which extinguishes appellee’s accrued obli gation under the parties’ property settlement agreement to make mortgage payments on the marital home. Although the agreement is extremely poorly drafted, construction of the document as a whole shows appellee’s mortgage obligations are in the nature of support, most likely, child support. Cf. DePoorter v. DePoorter, 509 So. 2d 1141, 1144 (Fla. 1st DCA 1987). The lower court could not, therefore, excuse this obligation based on the appellant/wife’s alleged violation of the provision that no unrelated male reside in the house. As this court explained in Sency v. Sency, 478 So. 2d 432 (Fla. 5th DCA 1985), two such wrongs do not make a right. 478 So. 2d at 433. Appellee was not entitled to ignore his financial obligations based on the breach of such a provision. He must instead avail himself of the remedies available to secure enforcement of that covenant or, if appropriate, obtain a modification.1
The lower court also erred in discharging this obligation upon appellant’s motion for contempt. Appellee filed no response to the motion nor any other pleading seeking relief from the mortgage payment obligation. Even if these mortgage payments were a feature of equitable distribution, it was improper for the court to award any sum as a set off in the absence of a claim for such contained in a pleading.2 See e.g., Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989).
REVERSED and REMANDED.
W. SHARP, PETERSON' and GRIFFIN, JJ., concur. . We do not reach the remaining issues of enforceability of the cohabitation clause as drafted or whether the fact, as in the appealed order, that a man lived with appellant "on certain weekends” constituted a violation of the clause.
. Additionally, no cases have been cited to us authorizing the imputation of "rent” to a tenant in possession. Finally, the record suggests that there was no evidence adduced in support of the set-off amount, but this is uncertain since we have been provided only an approved statement of evidence, not a transcript.
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Cited By
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Rotta v. Rotta, 34 So. 3d 107 (Fla. 3d DCA 2010)…(Fla. 3d DCA 1980) (“[A] judgment upon a matter entirely outside of the issues made by the pleadings cannot stand.”) (citing Cortina v. Cortina, 98 So. 2d 334, 337 (Fla.1957)); Udell v. Udell, 950 So. 2d 528 (Fla. 4th DCA 2007); Douglas v. Douglas, 616 So. 2d 574, 575 (Fla. 5th DCA 1993) (It was improper for the trial court to award mortgage payments as part of equitable distribution “in the absence of a claim for such contained in a pleading.”); and (b) cannot substantively be justified. See Lotspeich Co. v…
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Dufour v. Damiani, 231 So. 3d 486 (Fla. 4th DCA 2017)…e the house related payments similarly relates to child support and, perhaps, spousal support.” Sency v. Sency, 478 So. 2d 432, 432 (Fla. 5th DCA 1985). Particularly instructive on this- issue is the Fifth District’s decision in Douglas v. Douglas, 616 So. 2d 574, 575 (Fla. 5th DCA 1993).. There, the parties entered into a marital settlement agreement containing a provision that no unrelated male would reside in the house while the wife maintained exclusive possession. Id. The court stated, “Although the agr…
Authorities Cited
- DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)
- Sency v. Sency, 478 So. 2d 432 (Fla. 5th DCA 1985)
- Kratzer v. Reimiller, 552 So. 2d 1188 (Fla. 5th DCA 1989)