In a modification of alimony proceeding, where the marital settlement agreement indicates that alimony is not modifiable, except under certain circumstances, absent the occurrence of those described circumstance, alimony will be non modifiable. In Elbaum v. Elbaum, the Florida Court of Appeal recently stated: “Robert Elbaum appeals from a final order dismissing with prejudice his petition to terminate or modify his alimony obligations. We affirm because the marital settlement agreement unambiguously limited the ability to modify alimony to specific situations not raised in the petition…[T]his case is nearly identical to that confronted in Smith v. Smith, 110 So. 3d 108 (Fla. 4th DCA 2013). In Smith, the parties’ marital settlement agreement provided:
Said alimony shall be non-modifiable by the parties, in either
amount or duration, regardless of any change in circumstances of
either party. This alimony shall terminate on the Husband’s death, the Wife’s
death, or the Wife’s remarriage, whichever shall first occur. Id. at 110. The former husband in Smith petitioned to terminate his alimony obligation on the grounds that the former wife was in a supportive relationship. Id. at 109. The former wife successfully moved for judgment on the pleadings, and relied on the language of the agreement. Id. Upon these facts, we affirmed the judgment, reasoning as follows: Viewed as a whole, the parties’ agreement unambiguously provided that all alimony was non-modifiable and would cease only upon the occurrence of the death of either of the parties, or [the former wife’s] remarriage. To be sure, the concept of a supportive relationship as a possible termination event was something the parties could have contemplated at the time they entered into their agreement. They chose not to do so.
Id. at 110 (citation omitted). The sentiment, therefore, was ‘that a party to a marital settlement agreement may not invoke Florida’s supportive relationship statute in order to modify or terminate an alimony obligation where such action is prohibited under the terms of the agreement.’ Id. at 109.
In this case, the Agreement’s Article XII unambiguously provided that former husband’s alimony obligation would be ‘non-modifiable’ absent ‘unforeseen circumstances” involving the deterioration of former husband’s health or business. Both parties acknowledged that they had been informed that other grounds for modification existed. To allow modification in this circumstance would eviscerate the term ‘non-modifiable.'”
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