FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Sarasota County; Stephen M.
M. Johnson of Law Office of Andrea M. Johnson, P.A.,
Bradenton; and Kathi B. Halvorsen of Kathi B. Halvorsen,
P.A., Sarasota, for Appellant.
Richard Weissfeld, Sarasota, for Appellee.
Morrison (the Former Wife) appeals the order that denied her
second amended motion for enforcement of the marital
settlement agreement (MSA) entered between her and James
Morrison (the Former Husband). Because the trial court
applied the incorrect legal standard when interpreting the
parties' MSA and because resolution of the matter will
require consideration of evidence, we reverse and remand for
parties were married for twenty-seven years before filing for
dissolution. Apparently, the parties elected not to save for
retirement, relying instead on the fact that the Former
Husband's parents were quite wealthy and that he expected
to inherit large sums of money from them.
parties' MSA, as part of equitable distribution,
the parties agreed that the Former Husband would pay the
Former Wife specified percentages of the "inheritance
funds received" by the Former Husband after both of his
parents died. The MSA specifically stated that it was the
parties' "intention to utilize the inheritance for
both of their elder years." The MSA also required the
Former Husband to maintain life insurance as security for
this agreed obligation, with the insurance obligation ending
"if the Wife receives the inheritance monies."
appears from the language of the MSA that the parties
anticipated that the Former Husband would receive his
inheritance as a lump sum. However, the Former Husband's
father actually created a revocable trust, put all of his
considerable assets into the trust, and then-after the MSA
was signed-created a spendthrift subtrust with the Former
Husband as beneficiary that would be funded upon the
father's death. Thus, rather than receiving a lump sum
payment upon his father's death, the Former Husband began
receiving periodic distributions from the subtrust. But the
Former Husband refused to pay any portion of these
distributed funds to the Former Wife.
Former Wife subsequently filed a motion for enforcement,
contending that the funds actually distributed to the Former
Husband from the subtrust were subject to equitable
distribution under the MSA as inheritance funds received. The
Former Wife did not contend that she could invade
the subtrust or require that any distributions be made-only
that she was entitled to the percentage specified in the MSA
of the distributions actually made to the Former Husband. In
opposition, the Former Husband contended that the funds paid
to him from the subtrust were not "inherited" and
therefore were not contemplated by the language of the MSA.
He based this argument entirely on case law dealing with
statutory construction and the use of the term of
"inherit" in the federal bankruptcy statutes.
trial court held a hearing at which the Former Wife testified
to the parties' intent concerning the distribution of the
funds. The Former Husband did not attend the hearing or
present any contrary evidence; instead, his attorney simply
argued that the parties' intent was immaterial in light
of the "plain language used." The trial court
agreed with the Former Husband and denied the Former
Wife's motion to enforce. The Former Wife then brought
this timely appeal.
issue here is one that must be resolved under the law
pertaining to latent ambiguities rather than statutory
construction. "A latent ambiguity arises when the
language in a contract is clear and intelligible, but some
extrinsic fact or extraneous evidence creates a need for
interpretation or a choice between two or more possible
meanings." GE Fanuc Intelligent Platforms Embedded
v. Brijot Imaging Sys., Inc., 51 So.3d 1243, 1245 (Fla.
5th DCA 2011) (citing Deni Assocs. of Fla, Inc. v. State
Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1139
(Fla. 1998)); see also Luciano v. Franchino, 730
So.2d 410, 412 (Fla. 2d DCA 1999) ("A latent ambiguity .
. . exists where a contract fails to specify the rights and
duties of the parties in certain situations and extrinsic
evidence is necessary for the interpretation or a choice
between two possible meanings" (quoting Emergency
Assocs. of Tampa, P.A. v. Sassano, 664 So.2d 1000, 1002
(Fla. 2d DCA 1995))). "A latent ambiguity is thus
brought to light when extraneous circumstances reveal 'an
insufficiency in the contract not apparent from the face of
the document.' " Mac-Gray Servs., Inc. v.
Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659
(Fla. 2d DCA 2005) (quoting Hunt v. First Nat'l
Bank, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980)). When a
latent ambiguity exists, "the court must hear parol
evidence to interpret the writing properly."
Id. (quoting RX Sols., Inc. v. Express Pharmacy
Servs., Inc., 746 So.2d 475, 476 (Fla. 2d DCA 1999));
see also Emergency Assocs. of Tampa, P.A., 664 So.2d
at 1002-03. When considering that parol evidence, the
question to be addressed is what the parties would have
included in the contract had they anticipated the occurrence
they overlooked. Hunt, 381 So.2d at 1197 & n.3
(noting that "it isn't what the parties should have
done that invites and sanctions judicial intervention,
it's what they would have done had they thought to do
it"). And the question of what the parties would have
included is particularly important in an equitable setting,
such as family law matters.
the parties' MSA refers to "inheritance funds
received" by the Former Husband. There is no dispute
that the parties were referring to funds the Former Husband
anticipated that he would receive when his parents died, and
there is also no dispute that the parties did not know when
they executed the MSA exactly how the funds would ultimately
pass to the Former Husband. The extrinsic fact here is the
means by which the Former Husband received the funds. Rather
than the father's estate being probated with a lump sum
going to the Former Husband, the funds are being held in
trust for the Former Husband. This extrinsic fact requires an
analysis of the parties' intent as to the distribution of
funds when they entered into the MSA, i.e., what would the
parties have included in the MSA had they known that the
Former Husband would not receive the funds from his parents
outright but instead would receive them only in his capacity
as the beneficiary of a spendthrift trust.
here, the trial court did not address this question. Instead,
the court went on an extended foray into the law of statutory
construction and examined cases dealing with how to interpret
undefined terms in a statute-specifically the bankruptcy
statutes. See, e.g., In re Ciano, 433 B.R.
431 (Bankr. N.D. Fla. 2010); In re Roth, 289 B.R.
161 (Bankr. D. Kan. 2003). This was plain error, however,
because the goal of statutory construction is to determine
what a legislative body intended when it drafted a statute of
general applicability. See, e.g., Raymond James
Fin. Servs., Inc. v. Phillips, 126 So.3d 186, 190 (Fla.
2013) (noting that the "primary rule of statutory
construction is 'to give effect to legislative
intent' " (quoting Gomez v. Vill. of
Pinecrest, 41 So.3d 180, 185 (Fla. 2010))). That is a
wholly different question from determining what private
parties intended when they entered into a contract. Hence,
the courts' determinations in Ciano and
Roth concerning what Congress meant when it used the
term "inherit" in the bankruptcy statutes does not
inform-or even provide guidance-as to what the Former Husband
and Former Wife meant or intended when they provided for the
division of the anticipated "inherited funds" in
their MSA. The trial ...