Opinion
Case No. 5D20-1809
07-23-2021
Anthony A. GREY, Appellant, v. Anne C. GREY, Appellee.
Mark Francis Baseman, of Felix, Felix & Baseman, LLC, Tampa, for Appellant. M. Shannon McLin, William D. Palmer and Melissa Alagna, of Florida Appeals, Orlando, for Appellee.
Mark Francis Baseman, of Felix, Felix & Baseman, LLC, Tampa, for Appellant.
M. Shannon McLin, William D. Palmer and Melissa Alagna, of Florida Appeals, Orlando, for Appellee.
COHEN, J.
Anthony Grey ("Former Husband") appeals the trial court's order partially granting Anne Grey's ("Former Wife") second motion for rehearing or, in the alternative, for clarification of the final judgment of dissolution of marriage. We reverse.
The language used in contracts, including marital settlement agreements, must be crafted with precision, and when they are not, the parties should neither ask nor expect courts to rewrite their agreements. That is what occurred in this case. The parties, both involved in the horse industry, had been litigating their dissolution of marriage for almost eight years when they reached a settlement during the middle of trial. The agreement came after hours of last-minute negotiations and was reduced to writing in a three-page handwritten marital settlement agreement ("the agreement"). Former Wife's attorney read the agreement into the record, and both parties informed the trial court of their assent to its terms. Of relevance here, the agreement provided:
(1) The Wife shall transfer $100,000 from her Roth IRA to the Husband's Roth IRA within 15 days by QDRO/Court order after transfer documents are completed for paragraph (2) below.
(2) The Husband shall receive the 2 paintings (horse paintings) owned by the Fare Ventures Profit Sharing Plan within 20 days.
....
(9) The Wife shall receive all Breeder's Awards, Stallion Awards, Owner's Awards [indiscernible] horses bred by Husband for the five horses ....
Former Wife's attorney would later testify that the "2" in the agreement was actually a "3." The trial court found otherwise, and our review of the document supports that finding. Counsel's testimony is also conclusively refuted by his reading of the agreement into the record.
These awards represent monies due to the horse for races, stud fees, etc. Former Wife's attorney orally announced the names of the horses involved. The amounts are substantial.
The agreement also called for the parties to enter into a more formal marital settlement agreement incorporating its terms. However, after waiting in vain for five months, the trial court set a case management conference and subsequently entered a final judgment of dissolution of marriage, incorporating the agreement.
Former Wife timely filed a motion for rehearing or, in the alternative, for clarification of the final judgment of dissolution of marriage. She argued that a plain reading of the agreement together with the transcript announcing its terms indicated that the parties’ intent was for Former Husband to receive the $100,000 only after the documents transferring the awards related to the horses were completed. Former Wife asserted that the final judgment of dissolution of marriage transposed the condition precedent for the transfer of monies from her retirement account. That motion was denied, and no appeal was filed from that order.
Three months later, Former Wife filed a second motion for rehearing or, in the alternative, for clarification. Former Wife presented the same arguments as in her previous motion, although she raised additional points. Former Husband asserted that the trial court was without jurisdiction to consider the second motion since the deadline to appeal had concluded. Alternatively, he argued that the relief sought was substantive and would constitute a modification of the final judgment as opposed to clarification.
At the hearings on Former Wife's second motion, the trial court determined that it could not consider a second motion for rehearing but could consider whether to clarify the final judgment of dissolution of marriage. Both parties presented conflicting evidence as to the proper condition precedent triggering Former Wife's obligation to transfer the retirement funds to Former Husband. Ultimately, the trial court found that in the context of the proceedings and litigation, it was not reasonable to expect Former Wife to exchange $100,000 of retirement funds for the Former Husband to go to the marital home and pick up the horse paintings for his own benefit. Accordingly, it found:
The evidentiary hearing proceeded to a second day. Between the first and second day of hearings, Former Wife filed yet another motion for clarification.
So in regards to the clarification, the Court hereby clarifies that the condition precedent that needed to be met based on the stipulation, the language in the stipulation, there was an obviously and admittedly confusion [sic] by the Court in regards to how that was written on this particular document. That was the reason the Court requested repeatedly that the parties present the Court with a proposed marital settlement agreement. That was never done. The Court took it upon herself to try to decipher as clearly as possible what the language meant in the stipulation. Having heard testimony at this time I'm clear that the condition precedent was for the former husband to complete transfer documents related to the transfer of the horses and breeders’ awards and any other rewards or awards that the wife would be entitled to as a result of the resolution in final judgment in this case.
On appeal, the parties disagree on whether the changes to the final judgment of dissolution constituted a clarification or a modification of its terms. This issue presents a question of law reviewed de novo. Bustamante v. O'Brien, 286 So. 3d 352, 355 (Fla. 1st DCA 2019). Clarifying a judgment makes it clearer and more precise, while a modification changes the status quo and alters the rights and obligations of the parties. See id. If it was a modification, the trial court was without jurisdiction to entertain the second motion or modify the judgment because it was rendered final and Former Wife did not plead or demonstrate a substantial change in circumstances. See Pomeranz v. Pomeranz, 961 So. 2d 1068, 1070 (Fla. 4th DCA 2007) ; Encarnacion v. Encarnacion, 877 So. 2d 960, 964 (Fla. 5th DCA 2004). However, if the change was a clarification, trial courts have "continuing jurisdiction to clarify a final judgment." Van Epps v. Hartzell, 934 So. 2d 590, 592 n.5 (Fla. 5th DCA 2006) (citations omitted); see also Encarnacion, 877 So. 2d at 963 ("A court may clarify what is implicit in a final judgment, and enforce the judgment." (footnotes omitted)).
We do not disagree that the trial court's ruling was perhaps the fair and equitable thing to do. However, it was not the trial court's role to rewrite the agreement, despite its poor drafting. The agreement clearly provided that Former Wife's obligation to transfer the retirement funds was contingent on the transfer documents being "completed for paragraph (2) below." Paragraph (2) dealt solely with Former Husband obtaining the paintings from the profit sharing plan. It was not until paragraph (9), on a different page of the agreement, that the horse awards were addressed. The agreement was read into the record by Former Wife's lawyer. At no time did Former Wife make the required distribution from her retirement account contingent upon transfer of the horse awards.
The final judgment of dissolution copied nearly verbatim the terms of the agreement. The judgment provided:
C. The Wife shall transfer $100,000 from the Roth IRA to the Husband's Roth IRA within fifteen (15) days by QDRO/court order after transfer documents are completed for all that is required in paragraph D below.
D. The Husband shall receive the two paintings ("horse paintings") owned by Fare Ventures Profit Sharing Plan within twenty (20) days.
While it seems unlikely that the parties actually intended for the retirement fund transfer to be contingent upon the horse paintings, there is nothing unclear about the terms of the agreement and the final judgment of dissolution. Both mandate in plain terms that Former Wife was to transfer the retirement funds after the transfer documents for the horse paintings were completed. By making the retirement fund transfer contingent upon the transfer of the horse awards, the trial court rewrote the final judgment and the agreement, changing the status quo. Such a change amounts to a substantive modification rather than a clarification, and as a result, the trial court lacked jurisdiction to provide the requested relief. See Bustamante, 286 So. 3d at 355.
The horse paintings were valued at $7500, the retirement funds $100,000.
We note that Former Wife's second motion raised the identical issues as in her first motion that had been denied. The fact that she added additional arguments does not revive those arguments, and her failure to appeal that denial should have precluded further judicial review. Averbuch v. Lauffer, 516 So. 2d 973, 974 (Fla. 5th DCA 1987) (stating that court may not grant relief from judgment based on arguments that could have been subject of direct appeal); see also Sloan v. Sloan, 393 So. 2d 642, 644 (Fla. 4th DCA 1981) ("[A] party may not ... relitigate issues which have been previously litigated in a motion for rehearing .... If the grounds are identical, a party's failure to seek appellate review of the order denying the motion for rehearing precludes further judicial review." (citation omitted)).
Although we reverse, Former Wife is not without a remedy below. Much like any other contract, a marital settlement agreement is enforceable. See Encarnacion, 877 So. 2d at 963.
REVERSED.
HARRIS and NARDELLA, JJ., concur.