final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Sherwood Bauer, Jr., Judge; L.T. Case No.
2013 DR 2869.
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.
ON APPELLEE'S MOTION FOR
GERBER, C. JUDGE.
grant appellee's motion for clarification/rehearing as to
the factual points raised in paragraphs 2.A. and 2.B., deny
the remainder of appellee's motion for clarification,
withdraw our opinion dated January 24, 2018, and substitute
the following opinion in its place.
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
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
b. the circuit court's error in finding the former
husband made diligent efforts to sell and refinance 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.
. . .
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
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 ...