03-3127 & 03-1310 TARAFA V. TAKACH

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State: Florida

Court: Florida Third District Court

Docket No: 03-3127 & 03-1310 TARAFA V. TAKACH

Case Date: 12/14/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2005

** EDUARDO TARAFA, ** Appellant, ** v. ** ALICE M. TAKACH, ** Appellee. ** Opinion filed December 14, 2005. An Appeal from the Circuit Court for Miami-Dade County, Celeste Hardee Muir, Judge. Kluger, Peretz, Kaplan & Berlin, and Abbey L. Kaplan, and Jason R. Marks, and Michael L. Cotzen , for appellant. Shutts & Bowen, and Harold E. Patricoff, and Maxine M. Long, and Aliette D. Rodz, for appellee. LOWER TRIBUNAL NO. 02-30938 CASE NOS. 3D03-3127 and 3D03-1310

Before LEVY, RAMIREZ, and SUAREZ*, JJ. RAMIREZ, J. Alice M. Takach appeals the trial court's order granting _______________ *Judge Suarez did not participate in oral argument.

Eduardo Tarafa's motion for final summary judgment in case no. 03-1310. of We affirm the final summary judgment entered in favor finding there was no ambiguity in the parties'

Tarafa,

Stipulation of Settlement, but reverse the trial court's order denying Tarafa attorneys' fees and costs in case no. 03-3127. Case No. 03-1310 In December 1969, Tarafa married Takach. In May 1991, the

former wife filed a petition with the New York State Supreme Court to dissolve the marriage. Also in May 1991, the parties

entered into a Stipulation of Settlement resolving the matters concerning alimony. Divorce the marriage, including property distribution and

The Stipulation was ratified and incorporated into a Judgment by the New York State Supreme Court in

September 1991. According to Paragraph 13(a)(iii) of the Settlement, Takach is obligated to pay Tarafa permanent alimony in the amount of $5,250.00 per month, up to an including the earlier of: (i) the death of the former wife or husband; (ii) the former husband's remarriage; or (iii) such time as the former husband shall have co-habited as husband and wife with the same unrelated member of the opposite sex for an aggregate of three hundred sixty (360) days in any seven hundred twenty (720) day period. In August 2002, Takach filed a complaint for declaratory relief in the trial court of Miami-Dade County, in which she

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contended

that

she

was

no

longer

obligated

to

pay

Tarafa

permanent alimony under the Settlement because he had lived with a woman who was unrelated named Matilde Batista as "husband and wife" in excess of 360 days in a 720-day period. In January

2003, Tarafa filed a motion for final summary judgment and for fees and costs where he contended that there was no genuine issue of material fact that he and Batista were second cousins and thus were not "unrelated" under paragraph 13(a)(iii) of the Settlement. It is undisputed that Tarafa and Batista are second

cousins by blood. The trial court entered a final summary judgment in favor of Tarafa, finding the term "unrelated" to be clear and

unambiguous.

The trial court found that, because Batista and We agree.

Tarafa were second cousins, they were not unrelated.

The trial court correctly applied the plain and ordinary meaning of the word "unrelated" when it concluded that Tarafa and Batista were not "unrelated" under paragraph 13(a)(iii) of the Settlement. Webster's Third New International Dictionary This

defines "unrelated" as "not connected by birth or family."

same dictionary defines "cousins" as [a] relative descended from one's grandparent or from a more remote ancestor by two or more steps and in a different line . . . the children of first cousins are second cousins to each other, the children of second cousins are third cousins, etc." Thus, the term "unrelated"

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cannot related.

include We

second believe

cousins that an find

because ordinary the

second person

cousins of

are

average to be

understanding

would

clearly

term

"unrelated"

clear and unambiguous. Case No. 03-3127 Tarafa appeals the trial court's order barring him from seeking attorney's fees and The fees costs trial in the parties' post-

dissolution request Takach for

proceedings. attorney's that

court to the

referred a General

Tarafa's Master. barred

and

costs 21 of

contended

paragraph

Settlement

Tarafa from obtaining attorney's fees and costs from her in this post-dissolution proceeding. Paragraph 21 states:

The [Former Wife] acknowledges that Seaman and Ashley have represented her and rendered legal services to her in connection with this Agreement. The [Former Husband] acknowledges that Graubard Mollen Horowitz Pomerantz & Shapiro and Haythe & Curley have represented him and rendered legal services to him in connection with this Agreement. The parties agree to each be responsible for compensation of the respective counsel for the foregoing services and for any additional services that may be rendered in connection with this action for divorce, and to hold the other party harmless in all respects therefrom. The General Master found that paragraph 21 was clear and unambiguous and did not bar Tarafa from seeking his fees and costs from Takach for matters arising between the parties postdissolution. Takach filed her objections to the General

Masters' report and recommendations.

The trial court agreed

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that the provision in the Settlement addressing attorney's fees and costs was clear and unambiguous but held that the

stipulation was not limited to the divorce action and included this post-dissolution filed a dozen years later under a

different case number and in a different state.

We disagree.

Both the General Master and the trial court determined that the interpretation of paragraph 21 of the Settlement was a

question of law due to the subject provision being clear and unambiguous. 3d DCA 1987). See Langner v. Binger, 503 So. 2d 1362, 1363 (Fla. While everyone seems to agree that the provision

is clear and unambiguous, the trial court concluded that the new proceeding was somehow part of "this action for divorce." The interpretation of a contract is a matter of law and is therefore reviewed by the appellate court de novo. See Gumberg The

v. Gumberg, 755 So. 2d 710, 712 (Fla. 4th DCA 1999).

General Master interpreted paragraph 21 only to bar Tarafa from seeking his fees and costs from Takach in the original divorce action and would not include fees and costs incurred after the dissolution of marriage. We believe that the General Master was

correct in concluding that the phrase in paragraph 21 "this action for divorce" referred to the services performed by the attorneys in the dissolution of marriage action in New York for the services the attorneys performed on behalf of the parties in that distinct action. That provision did not bar Tarafa from

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obtaining fees and costs not incurred in connection with the services performed by those attorneys in the New York divorce proceeding. See Krueger v. Krueger, 689 So. 2d 1277 (Fla. 2d

DCA 1997) (the parties' acknowledgment to pay their own fees and costs for services "incurred by this action" would not include the fees that the wife incurred in the post-divorce modification proceeding). Conclusion In sum, we affirm the final summary judgment, finding there was no ambiguity in the parties' Stipulation of Settlement. We

reverse the trial court's order vacating the General Masters' report because Tarafa is not contractually barred under the

terms of the Stipulation of Settlement from seeking fees and costs in this post-dissolution proceeding initiated by Takach. We remand this issue to the trial court, with instructions to affirm the Report and Recommendations of the General Master and hold a hearing to determine the amount of attorney's fees and costs. Affirmed instructions. in part, reversed in part; remanded with

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