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Kirschner v. Kirschner

Florida Court of Appeals, Fourth District

January 24, 2018

ANGELA KAY KIRSCHNER n/k/a ANGELA KAY RAMSIER, Appellant,
v.
JONATHAN JAY KIRSCHNER, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Sherwood Bauer, Jr., Judge; L.T. Case No. 2013 DR 2869.

          Martin L. Haines, III of Brinkley Morgan (formerly of Martin L. Haines, III, Chartered), Lake Park, for appellant.

          Jonathan Jay Kirschner of Jonathan Jay Kirschner Esq. & Associates, LLC, Fort Pierce, for appellee.

          CORRECTED OPINION

          Gerber, C.J.

         The former wife appeals from the circuit court's final order partially denying her motion to enforce the final judgment regarding the parties' marital settlement agreement ("MSA") as amended by an addendum. The former wife raises several arguments, two of which we conclude have merit: (1) the court erred when it interpreted the MSA addendum as unambiguously treating the former husband's sale or refinance of the parties' former marital home as a condition precedent to the former husband's obligation to pay the former wife's equitable distribution; and (2) the court erred when it found that the former husband made diligent efforts to sell and refinance the home. We agree with these arguments and reverse for an evidentiary hearing to resolve the ambiguity as to when and how the former husband, without the sale or refinance of the home, would become obligated to pay the former wife's equitable distribution.

We present this opinion in the following sections:
1. the procedural history;
2. the circuit court's findings; and
3. our review of
a. the circuit court's error in interpreting the MSA addendum; and
b. the circuit court's error in finding the former husband made diligent efforts to sell and refinance the marital home.

         1. Procedural History

The MSA's original paragraph four stated, in pertinent part:
4. SALE OF MARITAL DWELLING: The parties agree to sell the marital dwelling above-referenced. The marital dwelling shall first be listed independently, or though [sic] an internet based listing service without use of a broker. The dwelling shall be listed at a price mutually agreed upon by the parties. In the event a sale is unable to be made by the method outlined above, the parties agree to list the marital dwelling with [a] Florida Registered Real Estate Broker chosen by mutual agreement of the parties, at a price to be mutually agreed upon by the parties.
The parties agree to sell the marital dwelling at or near it's [sic] fair market value, and neither party's agreement to sell shall be unreasonably withheld. . . .

         Later, the parties agreed to amend the MSA through an addendum which stated, in pertinent part:

Paragraph number 4 of that certain Agreement styled "Marital Settlement Agreement[, ]" executed by the parties on March 7, 2007, relating to "Sale of Marital Dwelling" is and shall be modified to the following extent:
The parties acknowledge and agree that the fair market value of the marital dwelling . . . is $725, 000.00.
The parties acknowledge and agree that their [sic] exists a first mortgage on said property . . . with an outstanding payoff amount of $328, 000.00.
The parties likewise agree that the total equity position in the property, as it currently exists, is $397, 000.00, and both the Husband and the Wife are entitled to one-half of that amount (50%) to wit: $198, 500.00 each.
Upon execution of this agreement, the Wife agrees to execute an instrument conveying all of her right, title and interest in the marital dwelling to the Husband. The parties agree that the Husband shall, within ten (10) days of the date this Addendum is executed by both of the parties ...

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