Here is a sentence that ended a marriage and then started nearly a decade of litigation: alimony would be thirty percent of the husband’s “gross income,” defined as the “periodic income” he receives as a direct result of his employment efforts.
Read that again. It sounds precise. It has a definition attached to it. Both parties signed it, a judge incorporated it into a final judgment, and everyone went home believing the question was settled.
It was not settled. In Walsh v. Walsh, Florida’s Fifth District Court of Appeal held that the phrase “periodic income” was ambiguous, reversed the trial court on three separate grounds, and sent the case back for a factual determination about what the parties actually meant when they signed. The dispute turned on a single adjective and a dictionary entry with two definitions.
If you are negotiating a settlement right now, this is the case a Tampa divorce lawyer would want you to read. Not because appellate procedure is interesting, but because almost every problem in Walsh was preventable with better drafting.
What Happened in Walsh v. Walsh
Helen and David Walsh ended a long-term marriage with a marital settlement agreement in March 2008. Paragraph 8 handled alimony, and the operative language did three things:
- It set permanent, periodic alimony at thirty percent of the husband’s gross income.
- It defined gross income as the “periodic income” he received as a direct result of his employment efforts, before considering any deferrals and tax-affected retirement savings he elected to have deducted from his pay.
- It excluded income from assets and savings already divided in the divorce, income from new investments or savings after April 26, 2005, and business expenses and reimbursements.
The parties also signed an Addendum, which they agreed would control if the two documents conflicted. It required a minimum of $2,000 per month, inclusive of the thirty percent. The final judgment incorporated both documents by reference.
The husband worked as a corporate executive. His compensation was not simple. Over the years it included base pay, income deferrals, and performance-based bonuses. And here is the detail that becomes important later: for years, he routinely paid his ex-wife thirty percent of his yearly bonuses.
In March 2017, the wife filed an amended motion for enforcement and contempt, arguing that he had been calculating alimony on his adjusted gross income after deferrals were taken out, rather than before, as paragraph 8 required. She also asked for attorney’s fees.
The husband responded with a motion in limine to keep out parol evidence, arguing the agreement was clear on its face. The trial court agreed, granted the motion, and excluded the extrinsic evidence, though it did allow the wife to proffer testimony from a tax code expert into the record. The husband then testified about his compensation structure and said he had actually overpaid alimony by $263,912.10 because he wanted to be cautious. His attorney told the court plainly that he was not seeking a credit for that overpayment.
The trial court denied the enforcement motion, found the agreements unambiguous, and then, despite nobody asking for it, awarded the husband a credit for the $263,912.10 in overpayments. It later denied the wife’s fee request, reasoning that the fee provision was never triggered because the husband had complied and in fact overpaid.
The Fifth District reversed on all of it.
Ruling One: “Periodic Income” Was Ambiguous
The court started from a principle worth internalizing: a marital settlement agreement is a contract, and it is interpreted using ordinary contract rules. The Florida Supreme Court has said the language itself is the best evidence of the parties’ intent, and its plain meaning controls. Courts read the whole document rather than isolated provisions, and they routinely consult dictionaries to determine what a word plainly means.
That dictionary step is what unraveled the agreement.
Merriam-Webster defines “periodic” two ways: occurring or recurring at regular intervals, and occurring repeatedly from time to time. Those are not the same thing.
Under the first definition, “periodic income” means income arriving on a regular schedule, like a base salary. Bonuses that show up irregularly and are not guaranteed would be excluded. That is how the trial court read it, and it is a perfectly reasonable reading.
Under the second definition, “periodic income” means income received repeatedly from time to time. Bonuses and incentive pay received more than once would qualify, even without a fixed schedule, because they still came as a direct result of his employment efforts. Also a perfectly reasonable reading.
When a contract term is reasonably susceptible to more than one interpretation, it is ambiguous as a matter of law. And when a contract is ambiguous, its meaning becomes a question of fact, which means the court must consider extrinsic evidence about what the parties intended when they signed.
So the trial court made two connected errors. It found clarity where there was ambiguity, and on that basis it excluded the very evidence needed to resolve the ambiguity. The Fifth District reversed and directed the trial court on remand to consider relevant extrinsic evidence from both sides about their intent.
There is a footnote in the opinion that deserves attention. The court observed that the husband had taken inconsistent positions: he argued on appeal that bonuses were never periodic income under the agreement, yet he had routinely paid thirty percent of those bonuses for years. In contract disputes, how the parties actually performed can be powerful evidence of what they understood the deal to be. If you have been paying or accepting something a certain way for a decade, that history does not vanish because a lawyer later frames the language differently.
Ruling Two: A Court Cannot Grant Relief Nobody Asked For
The second error is the most striking, because the trial court awarded a quarter of a million dollars in credit that the receiving party had expressly disclaimed in open court.
The overpayment credit was not raised in the pleadings. It was not tried by consent. The husband’s own attorney said he was not seeking it. The Fifth District held that ruling on a matter without proper pleading and notice violates due process, and that awarding the credit therefore violated the wife’s due process rights.
A procedural wrinkle here is genuinely useful to understand. Ordinarily, failing to raise an issue in a motion for rehearing would prevent an appellate court from reviewing it. The wife had not done so. But the court held that the due process deprivation was fundamental error, which can be raised for the first time on appeal. Fundamental error is a narrow category, and it is not a reliable safety net, but it exists for exactly this kind of situation.
The court added a second, independent reason the credit was wrong. There was no evidence the parties ever agreed the husband would overpay in some years and take a credit later, and no evidence that a credit would be equitable, particularly since he had deducted those overpayments on his taxes. Florida courts have consistently held that voluntary overpayments of alimony are generally treated more like gifts than loans. A payor who voluntarily pays more than required, without an agreement that the excess is an advance, usually cannot claim it back later.
That last point has real practical weight. Paying extra out of caution or generosity is admirable. Assuming it creates a bank of credit against future obligations is a mistake. If you intend an overpayment to count as an advance, that has to be documented at the time, in writing, with the other party’s agreement.
Ruling Three: Waiving Attorney’s Fees Requires Express Language
The third holding is the one most likely to affect readers directly, because it addresses a question that comes up in nearly every enforcement dispute: who pays the lawyer?
Section 61.16 of the Florida Statutes allows a court to award attorney’s fees in family law matters based on one party’s need and the other’s ability to pay. It is a needs-based provision designed to keep a financial mismatch from determining the outcome of a case.
A party can waive the right to seek fees under section 61.16 in a settlement agreement. But Florida courts require that waiver to be express. It has to actually say so.
The Walsh agreement had a fee provision in paragraph 4(D), stating that a party who fails on demand to comply with the agreement pays the other party’s fees and costs. The trial court reasoned that this provision was never triggered because the husband had complied, and denied fees on that basis.
The Fifth District held that this was error. The agreement contained no provision specifically waiving section 61.16 rights, and none of the fee language could be read as an implicit waiver. The court cited two instructive precedents. In one, an agreement stating each party would be responsible for their own attorney’s fees and costs associated with the matter was held not to waive the right to seek fees in a later action. In another, language waiving any and all claims the wife then had or might ever have to attorney’s fees was held not to bar section 61.16 fees in a subsequent enforcement proceeding.
The takeaway is important and slightly counterintuitive. A generic “each side pays their own fees” clause is common in settlement agreements, and most people assume it closes the door on fees forever. Under this line of cases, it typically does not close the door on a later enforcement action. The trial court on remand was directed to consider the wife’s need and the husband’s ability to pay.
Why an Older Case From Orlando Still Matters in Tampa
Walsh was decided in 2018 by the Fifth District, and Tampa sits in the Second District. Two reasons it still applies to a Hillsborough County divorce.
First, the core principles are not district-specific. The rule that a settlement agreement is a contract interpreted under ordinary contract law comes from the Florida Supreme Court and binds every court in the state. The rules on ambiguity, parol evidence, due process, and section 61.16 waivers are general Florida law.
Second, and more practically, the drafting problem in Walsh has nothing to do with geography. Compensation for professionals and executives has grown more complex since 2008, not less. Bonuses, restricted stock units, stock options, deferred compensation, phantom equity, commissions, profit distributions, and carried interest are ordinary parts of pay packages now. Every one of them raises the same question the Walshes never resolved: is this “income” for alimony purposes?
One update worth flagging. The agreement in Walsh provided for permanent periodic alimony, which Florida’s 2023 alimony reform eliminated for new awards. That change does not erase existing permanent alimony obligations from older judgments, and it does not affect the contract-interpretation lessons here at all. If your judgment predates the reform, its terms still govern, and cases like Walsh remain directly relevant to enforcing or interpreting them.
Practical Takeaways for Your Florida Divorce
1. Define income by listing categories, not by using an adjective. This is the single biggest lesson. Do not write “periodic income” and hope everyone agrees on what that means. Write out what is in and what is out: base salary, bonuses, commissions, incentive pay, restricted stock units at vesting, exercised stock options, deferred compensation, employer retirement contributions, severance, distributions from a closely held business, and anything else that applies to the specific job. A list is harder to negotiate and impossible to misread later.
2. Be explicit about deferrals. The Walsh agreement actually addressed this, saying gross income was measured beforedeferrals and tax-affected retirement savings. Yet the dispute still arose over whether payments were being calculated after deferrals. If a payor can reduce reported income by electing to defer compensation, the agreement should say clearly that deferred amounts are added back for alimony purposes.
3. Watch out for layered documents. The Walshes had an agreement and an addendum, with the addendum controlling in a conflict. That structure is common and often necessary, but every additional document is another chance for provisions to interact in ways nobody intended. If amendments are made, consider restating the full agreement rather than stacking modifications.
4. Your course of conduct becomes evidence. For years, the husband paid thirty percent of his bonuses, and the appellate court noticed the inconsistency between that behavior and his litigation position. How you actually perform a settlement agreement can be used to show what you understood it to mean. That cuts both ways, so pay attention to what your payment history is establishing.
5. Never treat voluntary overpayments as future credits. If you want extra payments to count as advances, get that in writing and signed at the time you make them. Otherwise Florida law will likely treat them as gifts. And note the tax angle the court raised: the husband had deducted the overpayments, which made it harder to argue equity favored giving him credit for them.
6. Do not assume a fee clause waives section 61.16. Waiver requires express language. If you genuinely intend to waive statutory fee rights, say so directly. If you do not intend to waive them, make sure nothing in your agreement reads that way. Either outcome can be drafted for, but only if someone is thinking about it.
7. Proffer excluded evidence. When the trial court kept out the wife’s tax expert, her lawyer put the testimony into the record as a proffer anyway. That is what preserved the issue and gave the appellate court something to look at. If a judge excludes your evidence, getting it into the record in some form protects your appeal.
8. Relief has to match the pleadings. A court generally cannot grant something nobody requested. If a judgment awards relief that was never pled or tried by consent, that is a due process problem worth raising promptly.
9. Revisit ambiguous language before it becomes a fight. If you already have a judgment with vague income language and both parties are currently on reasonable terms, a clarifying stipulation is far cheaper than the alternative. The Walshes litigated from 2017 through a 2018 appeal and then went back to the trial court to start over on the factual question.
Frequently Asked Questions
Do bonuses count as income for alimony in Florida? It depends on how your agreement or judgment defines income. Walsh holds that vague language like “periodic income” can be ambiguous enough to require a factual hearing on what the parties meant. Where an agreement clearly includes or excludes bonuses, that language controls. Where it does not, expect a dispute.
What is parol evidence, and when can a court consider it? Parol or extrinsic evidence is evidence outside the four corners of the document, such as testimony about negotiations, drafts, or how the parties have performed. Courts generally will not consider it when a contract is clear. Once a term is found ambiguous, extrinsic evidence becomes not just permitted but necessary.
My ex overpaid alimony for years. Can they demand it back? Generally not, if the overpayments were voluntary and were not agreed in advance to be advances against future obligations. Florida cases have treated such payments as closer to gifts. The analysis is fact-specific, so a Florida divorce attorney should review the payment history and any written communications.
Can I get attorney’s fees for enforcing my divorce judgment? Possibly, under section 61.16, based on your need and your former spouse’s ability to pay. A generic clause saying each party bears their own fees usually does not waive that right in a later enforcement action, though a specific, express waiver can.
Does the 2023 alimony reform mean my permanent alimony is gone? No. The reform eliminated permanent alimony for new awards going forward. Existing obligations under prior judgments remain in force under their own terms. Modification remains governed by its own separate standards.
My settlement agreement and its addendum seem to conflict. Which one wins? Usually whichever the documents say controls, which is why that clause matters. In Walsh, the parties agreed the addendum would govern in a conflict. Absent such a clause, a court reads the documents together and tries to reconcile them.
Can we fix vague language in an existing agreement without going to court? Often yes. Parties can enter a stipulation clarifying their agreement and, in appropriate circumstances, submit it for the court’s approval. This is dramatically less expensive than litigating the ambiguity years later.
Talk to a Tampa Divorce Lawyer at The McKinney Law Group
The Walshes signed their agreement in 2008 believing they had resolved alimony. Nine years later they were in a courtroom arguing about the meaning of one word, and then in an appellate court, and then back before the trial judge to start the factual inquiry that should have happened at the beginning.
That is an expensive way to discover that a definition was not as clear as it looked. And it is largely avoidable. Precision in a settlement agreement is not a matter of using more legal language. It is a matter of naming things specifically: this bonus, this deferral, this stock grant, counted this way, on this date.
Whether you are negotiating a settlement, trying to enforce one your former spouse is interpreting creatively, or looking at an old judgment whose language no longer fits a very different compensation package, a Tampa divorce lawyer at The McKinney Law Group can help you get clear about what your agreement actually says and what your options are. Contact The McKinney Law Group today to schedule a consultation.
Written by Damien McKinney, Founding Partner
Damien McKinney is the Founding Partner of The McKinney Law Group Family & Divorce Lawyers, bringing nearly two decades of experience to complex marital and family law matters. He is licensed in both Florida and North Carolina and has been repeatedly recognized as a Rising Star by Super Lawyers.