       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                        GLENN R. STEPHANOS,
                             Appellant,

                                    v.

                       DIANE LYNN STEPHANOS,
                              Appellee.

              Nos. 4D19-1276, 4D19-1378 and 4D19-1979

                             [June 24, 2020]

   Consolidated appeal from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Samantha Schosberg Feuer, Judge; L.T. Case
No. 502013DR007061XXXXNB.

  Benjamin T. Hodas and Brendon Carrington of Fisher Potter Hodas, PL,
West Palm Beach, for appellant.

  Joel M. Weissman, Sarah A. Vitulli and Ashley M. Johnson of Joel M.
Weissman, P.A., West Palm Beach, for appellee.

KUNTZ, J.

   The Former Husband timely appeals three separate orders in this
consolidated appeal. We agree with the Former Husband that the circuit
court erred in treating the parties’ 1996 agreement as a marital settlement
agreement instead of a postnuptial agreement. Our resolution of that
issue renders the remaining substantive issues on appeal moot. As a
result, we reverse the final judgment of dissolution (4D19-1276), the final
money judgment in the Former Wife’s favor (4D19-1378), and the June 17,
2019 order directing the clerk to issue writs of garnishment (4D19-1979).

                              Background

    The Former Wife and Former Husband married in 1977. They briefly
separated sometime around 1994 to 1995 but reconciled and resumed
living together.

   In December 1996, while still married and not separated, they executed
the agreement that is the subject of this appeal (“the 1996 Agreement”).
When they entered into the 1996 Agreement, they were not contemplating
divorce. They executed the agreement because the Former Wife’s family
wanted to protect her assets.

   Almost seven years later, the parties separated again. The Former Wife
petitioned for dissolution, and the Former Husband counter-petitioned.
Just short of seven months later, the parties again reconciled and
dismissed their petitions, continuing to live together as married (“the 2003
reconciliation”).

    Ten years later, the Former Husband petitioned for dissolution, the
petition in this action. The Former Husband sought to enforce the 1996
Agreement and asked the court to set apart nonmarital assets and
liabilities. The Former Wife filed an answer and counter-petition, asserting
that the 1996 Agreement was void.

   The Former Wife moved for summary judgment on her defense that the
1996 Agreement was void, arguing that, under Weeks v. Weeks, 197 So.
393 (Fla. 1940), and Cox v. Cox, 659 So. 2d 1051 (Fla. 1995), the
“executory provisions” of the 1996 Agreement were voided by the parties’
2003 reconciliation because the 1996 Agreement “does not contain an
explicit statement that reconciliation or remarriage will not abrogate the
executory provisions of the Agreement.”

   The court held a hearing and granted the Former Wife’s motion for
summary judgment. The court’s only finding was that the executory
provisions of the 1996 Agreement were void based on Weeks and Cox. But
the court did not specify which provisions were executory.

   The case was reassigned multiple times to several circuit judges and all
made substantive rulings. Judge Amy Smith entered the summary
judgment order. Judge Howard Coates later agreed with the Former
Husband that there are differences between postnuptial agreements and
marital settlement agreements but declined to modify Judge Smith’s
summary judgment order. In declining to modify Judge Smith’s order,
Judge Coates noted that Judge Smith considered the issue on at least
three occasions.

    A third judge, Judge Samantha Schosberg Feuer, ultimately entered
the 43-page final judgment of dissolution that the Former Husband
appeals. In the final judgment, Judge Schosberg Feuer declined to
“readdress any decision by the predecessors of th[e] [c]ourt regarding the
efficacy of the” summary judgment order.


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                                  Analysis

   On appeal, the Former Husband raises four substantive issues. Our
resolution of the first renders the remainder moot. For his first issue, the
Former Husband argues that the court incorrectly ruled that the executory
provisions of the 1996 Agreement were voided by the parties’ 2003
reconciliation. He argues that rule applies only to marital settlement
agreements, not to postnuptial agreements. We agree.

   “Postnuptial agreements regarding alimony and marital property are
properly enforceable in dissolution proceedings.” Casto v. Casto, 508 So.
2d 330, 333 (Fla. 1987). Only two grounds allow a spouse to vacate or
modify a postnuptial agreement, and it is undisputed that neither ground
applies in this case. See id. at 333–34.

   The issue in this appeal is the applicability, or existence, of a third
ground to vacate or modify a postnuptial agreement. In Weeks v. Weeks,
197 So. 393 (Fla. 1940), the supreme court answered a certified question:
“Does a resumption of the marital relation abrogate a separation
agreement?” Id. at 394. The court answered in the affirmative:

      It appears to be well settled that reconciliation of husband and
      wife and resumption of marital relations for any period of time
      will render a previous contract and settlement of property
      rights void and that in the absence of divorce a separation
      contract between husband and wife is abrogation of the
      marital relation.

Id. at 395 (citations omitted).

   In Cox v. Cox, 659 So. 2d 1051 (Fla. 1995), the supreme court clarified
that the holding in Weeks only applies to executory provisions:

      While Weeks announced a rule that reconciliations will void
      marital settlement agreements, it did so in the context of
      considering the viability of an executory provision of such an
      agreement. . . .

      ...

      [W]e hold that reconciliation or remarriage abrogates the
      executory provisions of a prior marital settlement agreement
      unless there is an explicit statement in the agreement that the
      parties intended otherwise. However, we hold that the

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      executed provisions of a prior marital settlement agreement
      are not affected by reconciliation or remarriage absent a
      reconveyance or a new written agreement to the contrary.

Cox, 659 So. 2d at 1054 (footnote omitted). The supreme court explained
its reasoning: “Ordinarily, parties in the throes of a dissolution who enter
into a settlement agreement are not contemplating reconciliation or
remarriage. By the same token, parties who have decided to reconcile or
remarry cannot be expected to be thinking about a subsequent
dissolution.” Id.

   Here, the Former Husband correctly argues that Weeks and Cox do not
apply to the 1996 Agreement—a postnuptial agreement executed while the
parties were still married and not contemplating separation or dissolution.
The Former Wife argues the Former Husband’s position prioritizes form
over substance and should not bar application of Weeks and Cox.

    But Cox’s holding—that reconciliation or remarriage abrogates
executory provisions—applies specifically to a “prior marital settlement
agreement,” not to a postnuptial agreement. See 659 So. 2d at 1054. In
Cox, the parties’ agreement was made after they “experienced marital
difficulties,” and it was incorporated into the first final judgment of
dissolution. Id. at 1052.

    Similarly, the two cases from this Court applying Cox involved
situations where a marriage was breaking down. In Matos v. Matos, 932
So. 2d 316 (Fla. 4th DCA 2006), after marital problems arose, the parties
“went to a lawyer/mediator to work out a ‘settlement.’” Id. at 317. The
parties “resumed marital life” after working out a settlement but, two years
later, the husband petitioned for dissolution. Id. And in Slotnick v.
Slotnick, 891 So. 2d 1086 (Fla. 4th DCA 2004), the parties’ first judgment
of dissolution included a marital and property settlement agreement. Id.
at 1087. The parties remarried one year later, but the wife then petitioned
for dissolution. Id.

   Matos and Slotnick, like Cox, involved agreements entered into during
a period when the parties were contemplating dissolution or separation.
See also Hellard v. Siegmeister, No. 3D17-2175, 2019 WL 5406530, at *1,
*4 (Fla. 3d DCA Oct. 23, 2019); Burroughs v. Burroughs, 921 So. 2d 802,
803–04 (Fla. 1st DCA 2006); Baird v. Baird, 696 So. 2d 844, 845, 846 (Fla.
2d DCA 1997). Here, the parties were not separated or contemplating
dissolution when they entered into the 1996 Agreement.



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    The holding in Cox does not apply here. The record shows that both
parties agreed that the 1996 Agreement was executed while the marriage
was intact and while the parties were not imminently considering divorce.
Thus, the 1996 Agreement was a postnuptial agreement in both form and
substance. Because Cox does not apply, the entire 1996 Agreement is
enforceable and should be applied in distributing the parties’ assets and
liabilities.

                              Conclusion

   The court erred when it concluded that the executory provisions of the
1996 Agreement were unenforceable. As a result, we reverse the court’s
final judgment of dissolution, final money judgment, and order directing
the clerk to issue writs of garnishment, and we remand for further
proceedings consistent with this opinion.

   Reversed and remanded.

LEVINE, C.J., and DAMOORGIAN, J., concur.

                          *         *        *

   Not final until disposition of timely filed motion for rehearing.




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