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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Specificity Required: Fourth DCA Holds Modification of Custody Was Not a Condition Precedent to Modification of Alimony Under Marital Settlement Agreement

Cook v. Cook, 4D11-2561

The parties were married for nineteen years and had four children. They filed for dissolution of marriage, and their marriage was later dissolved by a final judgment that incorporated a marital settlement agreement (“MSA”). The MSA set a specific child support obligation for the former husband. The MSA also set a $1 per month alimony amount. The MSA provided that the former wife did not waive alimony and that the alimony amount “may be modified upon any modification in custody of the minor children, such that the alimony obligation would be increased.”

The former husband later petitioned for modification of his child support payment once only one of the parties’ children was still a minor. The former wife counter-petitioned for an increase in alimony due to an alleged substantial change in circumstances. The trial court reduced former husband’s child support payment and granted summary judgment against former wife on her counter-petition for an increase in alimony. The trial court found that the MSA only allowed a modification of alimony in the event that custody was modified.

On appeal, the Fourth District Court of Appeal (“Fourth DCA”) examined whether the trial court was correct in construing the MSA such that modification of custody was a condition precedent that was required before alimony could be modified. The Court noted that the law does not favor conditions precedent and requires they be unambiguous, and that the MSA’s language specifically allowed for the modification of alimony if custody was modified but did not restrict modification of alimony to those circumstances. The Court held that modification of custody was not a condition precedent. Additionally, the former wife had not waived modification of alimony. The Court reversed and remanded for further proceedings.

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