MMGF #349: Ambiguity Is Not Your Friend. Usually.

Originally released January 11, 2018

Two cases decided this week deserve another look.

Leave No Room for Ambiguity in MSAs

It doesn’t matter what you and the opposing party “understand” when signing a mediated settlement agreement. What matters is if there’s any chance a court reconsidering the matter years later might conclude there’s an ambiguity. Wohlberg v. Conner, Case No. 4D17-390 (Fla. 4th DCA Jan. 10, 2018).

Here, the parties agreed to 70/30 timesharing in favor of the wife, with husband to get 50/50 timesharing if he continuously and timely exercised timesharing for six months.

Six continuous months starting when?

Wife and her attorney assumed it obviously began from the signing of the MSA, and they sought a ruling foreclosing 50/50 timesharing when, after three months, husband had not exercised that regular timesharing. That petition was dismissed.

Over a year later, husband got his act together and filed a motion to enforce based on his exercise of six consecutive months of regular timesharing.

Wife argued that the six months ran from the entry of judgment—where he had not complied, and therefore his motion would be dismissed—or in the alternative that there was an ambiguity. The trial court disagreed, holding unambiguous the provision that if he continuously and timely exercised timesharing for six consecutive months, then the parties would exercise equal timesharing. He did before he filed his motion to enforce, so that was that.

But not for long. The district court reversed, requiring a hearing on the parties’ intent when signing the MSA and calling for the court to consider the child’s best interests.

It doesn’t matter if the parties had a clear understanding what they meant by the MSA – you can rest assured that both parties will “remember” that the provision was drafted with his or her favored interpretation if it comes up again a couple years later. And the trial court will ultimately conclude that one party, or the other, was truthful about the interpretation.

It didn’t have to be that way. No matter which way the trial court goes, the parties had to litigate timesharing again more than a year after their CFJ, and then paid on appeal to secure the result they wanted – only to see the matter return to the trial court for yet more litigation. Even if you win in the end, you’ve paid for more litigation that you could have headed off with the CFJ. If you’re negotiating a consent final judgment, forget about what the parties “obviously” understand the language to mean. If it’s not clearly written, then it may not matter. And if opposing counsel or the mediator grouse that you’re being too persnickety, just point them to cases like this.

One other point for appellate lawyers. Presumption of correctness or not, if it’s a matter of contractual interpretation, then the district court will draw its own conclusion. De novo review, unlike abuse of discretion, gives you a better shot at convincing the appellate court that your interpretation is correct. Conversely, if you won at the trial level, you can’t rest on the victory and assume that the DCA will agree with the trial court’s interpretation.

You can read the full Wohlberg opinion here.

Attorneys’ Fees in Dating, Repeat, and Sexual Violence Injunctions

Some cases held that you couldn’t get attorneys’ fees under Section 57.105 in connection with domestic violence injunction cases. Cisneros v. Cisneros, 831 So. 2d 257 (Fla. 3d DCA 2002); Ratigan v. Stone, 947 So. 2d 607 (Fla. 3d DCA 2007). The First DCA disagreed last year. Hall v. Lopez, 213 So. 3d 1003 (Fla. 1st DCA 2017).

And the Florida Supreme Court, in a 4-3 decision, now says the First DCA got it right. Lopez v. Hall, Case No. SC16-1921 (Fla. Jan. 11, 2018).

Because many injunction cases turn on he said, she said facts, it may be tricky bringing Section 57.105 to bear. You already have trial courts wary of denying injunctions to those who need them, or granting them unnecessarily and therefore triggering the consequences for respondents who are unjustly accused. It’s easy to imagine circumstances where you make the strategic decision not to serve a motion.

But if the circumstances and proof will allow you to prove that petitioner never should filed the petition – that is, the other party knew or should have known the claim was not supported by the material facts – then getting an extension to the hearing and serving the motion can be viable. If the proof is that good, you can at least defray the client’s expense for the hearing with the fee award. Or get the voluntary dismissal of the petition before hearing.

Click here to read the entire opinion in Lopez.

--Mike Giel

About Michael Mattson, by Sheryl Carter

Disclaimer: This Mattson Memo/Giel File was originally released in January 2018. But please do not consider it legal advice. And do not assume it reflects the current state of the law. Family law changes all the time. Statutes are enacted, amended, or repealed. Case law goes on, and the apparent effect of a case decided years ago may be limited, or expanded, by other courts considering the same or similar issues.

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