06-0901 HADDAD V. HESTER

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 06-0901

Case Date: 04/18/2007

Preview:Third District Court of Appeal
State of Florida, January Term, A.D., 2007
Opinion filed April 18, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-901
Lower Tribunal No. 05-298

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Fred Haddad,
Appellant, vs.

Julia Hester,
Appellee.

An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. Paul Morris, for appellant. Roger G. Stanway (Hollywood), for appellee.

Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge. LAGOA, Judge. Appellant, Fred Haddad ("Haddad"), appeals from a final judgment granting his former wife, Julia Hester ("Hester"), summary judgment in his action to

partition a condominium owned by the parties as joint tenants with a right of survivorship. We affirm. I. FACTUAL AND PROCEDURAL HISTORY The parties were married in 1980 and divorced in 2002. In 2002, the parties entered into a Marital Settlement Agreement ("Settlement Agreement"), whereby the parties agreed to the distribution and ownership of the following seven pieces of property: the marital home in Ft. Lauderdale 1 ; a condominium in Islamorada, Florida; an oceanfront lot in Flagler County, Florida2 ; a single family home in New

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In reference to this property, the Settlement Agreement provided: The husband shall continue to reside in the marital home due to the joint shared custody provisions. . . . After the minor child . . . begins college the husband shall have the option of purchasing the wife's interest at fair market value to be determined by an independent appraiser, one selected by each party, or of placing the property for sale. The parties will equally split the profits from such sale after the payment of outstanding mortgages, liens, debts, taxes and other encumbrances. The parties agree they shall execute a quit claim deed changing title from husband and wife to joint tenant with right of survivorship so that this property will be jointly owned and shall pass to the other in the event of the demise of either party.

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In reference to this property, the Settlement Agreement provided: The parties own an oceanfront lot ready for building on Coquina Beach, Flagler County. The parties again shall execute a quit claim deed to cause this to be owned as joint tenants with right to survivorship. The parties already have the property listed for sale, and upon sale proceeds shall be used to satisfy 2001 Federal Income Tax Liability and debts of the marriage. Any remainder
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Orleans 3 ; a townhome located in the Victoria Park area of Ft. Lauderdale, Florida 4 ; and properties in Lee County, Florida, and in Wayne County, Pennsylvania. 5 The property at issue in this appeal is the condominium in Islamorada ("Islamorada property"). Concerning ownership of the Islamorada property, the Settlement

Agreement explicitly stated: The parties both desire to keep this property, expecting it to pass to the children. The husband shall maintain this property and a quit claim deed shall be executed by the parties so that it is owned not as husband and wife but as joint tenants with right of survivorship. The Settlement Agreement also contained a schedule for alternating use of the Islamorada property as well as the following modification provision: "[t]he

shall be equally divided by the parties. maintained by the husband.
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The property shall be

This home was purchased for the adult daughter to use while attending school. The home was titled in the name of the parties' daughter and Hester and the down payment used was from monies the adult daughter received from her paternal grandfather. Apart from the down payment, the home was purchased with marital assets. The Settlement Agreement provided that: Upon sale of the property the parties agree the first $45,000 shall be given, in trust as the parties concur, to [the daughter], with the remainder to be divided equally between the parties after payment of all mortgages, taxes, liens, encumbrances and the like. The Settlement Agreement provided that the this property was "the sole property of the wife save that upon sale of the marital home the husband shall receive a credit of $50,000 that was used to purchase the above referenced townhome." With regard to these properties, the Settlement Agreement provided that "[t]he parties will resolve these issues among themselves."
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modification or waiver of any provision of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement." On April 26, 2004, two years after the final judgment of dissolution had been entered, the parties entered into a Mediation Settlement Agreement ("Mediation Agreement"). Among the many issues resolved in the Mediation Agreement was an elaborate provision entitled "TIME SHARING FOR ISLAMORADA PROPERTY." In this provision, the parties agreed to a summer occupancy schedule and a schedule in which the parties split the use of the condominium each month, dependent upon whether it was an "odd year" or an "even year." Simultaneous with the execution of the Mediation Agreement, and in accordance with the previously entered into Settlement Agreement, the parties also executed a quit claim deed conveying title to the Islamorada property to themselves as joint tenants with right of survivorship. In 2005, Haddad filed an action for partition of the Islamorada property and also alleged a special equity in the property. Hester subsequently filed a motion for summary judgment asserting that Haddad waived any right to bring a partition action based upon the terms of the Settlement Agreement and the Mediation Agreement. The trial court granted Hester's motion for summary judgment on the ground that Haddad could not unilaterally modify the Settlement Agreement which

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"expresses the hope that - following the estate for their joint lives reserved by the parties

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