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Date: 01-30-2022
Case Style:
ANDRES SUAREZ, vs ELSA SUAREZ
Case Number: 20-0611
Judge: Edwin A. Scales, III
Court:
Third District Court of Appeal
State of Florida
On appeal from The Circuit Court for Miami-Dade County
Plaintiff's Attorney:
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Defendant's Attorney: S. Roy Law, P.A., and Stephanie E. Roy
Description:
Miami, FL - Divorce lawyer represented defendant appealing the entryof a contempt order for failure to make alimony payments.
The Former Wife and the Former Husband were married for twentytwo years. During this time, they founded and operated a Santeria church in
Miami called the Ochosi Yoruba Church. They entered into the MSA in
September 2006, and the MSA was incorporated into their final divorce
decree on November 6, 2006.
The MSA provides that the Former Husband will pay alimony to the
Former Wife in order to compensate the Former Wife for the value of her
share of the Church, the real property the Church occupied, the marital home
(which was located in the Church premises), and the non-profit organization
that operated the church (the “Alimony Provision”).
The Alimony Provision reads as follows:
ALIMONY: The Husband shall pay the Wife the amount of Three
Hundred Thousand Dollars ($300,000.00) as Alimony. This
money represents the Wife’s claim of a half interest in the Ochosi
Yoruba Church, Inc., which is the Husband’s non-profit
organization. The Husband will make to the Wife a lump sum
payment of One Hundred and Fifty Thousand Dollars
($150,000.00) on the day of the execution of this agreement and
shall make monthly payments of Four Thousand One Hundred
Sixty-Six Dollars with Sixty-Seven Cents ($4,166.67) for a period
of three (3) years beginning on the 1st of October 2006 for the
remaining balance of $150,000.00.
The MSA provides that this obligation is non-modifiable and also
provides that the Former Husband will retain ownership of both the real
property (including the Church and the home) and the business organization.
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The real property provision and the business provision of the MSA, both
contained within a section titled “Equitable Division of Assets and Liabilities,”
read in relevant parts, as follows:
REAL PROPERTY: As to the “Ochosi Yoruba Church” . . . The
Home [sic] currently titled/financed in the corporation name of
Ochosi Yoruba Church a non-profit organization. Both parties
have agreed that the Husband shall retain the property. The Wife
shall immediately quit claim her interest in said property to the
Husband. The Husband agrees to be responsible for said
mortgage and hold the Wife and Wife’s credit harmless from any
damage or responsibility. The Husband shall refinance the
property in order to remove the Wife’s name and credit off the
property.
BUSINESS: The parties founded a non-profit organization
named “Ochosi Yoruba Church” and established a corporation
under the same name . . . . The Wife has agreed to waive all
rights and interest in said corporation.
In August 2018, approximately ten years after the last alimony payment
was due, the Former Wife filed a Motion for Civil Contempt and Enforcement
of Alimony (“the Motion”), claiming, among other things, that her Former
Husband had failed to pay the alimony due her pursuant to the MSA’s
Alimony Provision. The Former Husband moved to dismiss the Motion,
arguing that, as a matter of law: (i) the Former Wife’s claim was barred by
the doctrine of laches; and (ii) because the Alimony Provision was not for
“support” of the Former Wife, the provision could not be enforced via the
court’s contempt powers. The trial court denied the Former Husband’s
5
motion to dismiss, without prejudice to the trial court revisiting the issues
after conducting an evidentiary hearing on the Motion.
After conducting the evidentiary hearing,1 the trial court entered the
detailed order on appeal. In its March 2, 2020 order, the trial court found that
the MSA was “structurally ambiguous” and that the MSA contained “latent
ambiguities on the face of the contract.” Due to this ambiguity finding, the
trial court relied upon the parol evidence adduced at the evidentiary hearing
(admitted over the Former Husband’s objection) to discern the parties’ intent
regarding the Alimony Provision. Based on this parol evidence, the trial court
found that the parties’ intent in drafting the Alimony Provision was for the
Former Husband to provide alimony “support” payments to the Former Wife,
therefore subjecting enforcement of the Alimony Provision to the court’s
contempt powers.
Also based on the evidence adduced at the evidentiary hearing, the
trial court found that the Former Husband had made only $170,925 of the
$300,000 in payments required under the Alimony Provision, and that the
doctrine of laches was inapplicable to bar the Former Wife’s claims because
the Former Husband had not established the requisite prejudice. The trial
1 The evidentiary hearing took place over two days: October 2, 2019 and
January 16, 2020.
6
court granted the Former Wife’s Motion, found the Former Husband in
contempt, and sentenced the Former Husband to five days in jail. After
finding that the Former Husband had the present ability to pay the purge
amount of $5,000, the trial court gave the Former Husband ten days to pay
the purge amount and ninety days to pay the remainder of the Alimony
Provision obligation to the Former Wife. The Former Husband timely
appealed the order.
II. Analysis2
A. Support Alimony Versus Alimony for Equitable Distribution
The principal issue in this case is whether the Former Husband’s
$300,000 alimony payment obligation in the MSA’s Alimony Provision is for
“support” of the Former Wife or, in the alternative, for the “equitable
distribution of property.” If, as the trial court determined after admitting parol
evidence of the parties’ intent, the payment obligation is for “support,” then
the trial court can enforce the obligation through its contempt powers. See
2 We review de novo the trial court’s construction of the MSA. Law v. Law,
299 So. 3d 505, 509 (Fla. 3d DCA 2020). We also review findings of
ambiguity de novo. Syverson v. Jones, 10 So. 3d 1123, 1125 (Fla. 1st DCA
2009). We review the trial court’s factual findings to determine whether they
are supported by competent substantial evidence. Hooker v. Hooker, 220
So. 3d 397, 403 (Fla. 2017). Finally, we review a trial court ruling on the
defense of laches for an abuse of discretion. Dep’t of Revenue ex rel.
Thorman v. Holley, 86 So. 3d 1199, 1202-03 (Fla. 1st DCA 2012).
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Braswell v. Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). If, however,
the payment obligation is for the “equitable distribution of property,” then in
the enforcement of this obligation, “the only remedies are those available to
creditors against debtors.” Veiga v. State, 561 So. 2d 1335, 1336 (Fla. 5th
DCA 1990).
It appears the trial court presumed that the Former Husband’s
$300,000 payment obligation was for either support alimony (enforceable
by contempt) or equitable distribution of property (not enforceable by
contempt), without recognizing that parties may agree to a hybrid species of
non-modifiable, lump sum alimony that effects a distribution of marital
property. Lump sum alimony may be awarded “to achieve equitable
distribution of the marital assets.” Vigo v. Vigo, 15 So. 3d 619, 622 (Fla. 3d
DCA 2009); Miulli v. Miulli, 832 So. 2d 963, 964 (Fla. 2d DCA 2002). “It is
well established that an award of lump sum alimony that effects a distribution
of marital property is not enforceable by contempt.” Bongiorno v. Yule, 920
So. 2d 1209, 1210 (Fla. 1st DCA 2006); Pipitone v. Pipitone, 23 So. 3d 131,
136 (Fla. 2d DCA 2002) (recognizing that “[p]ayments for equitable
distribution . . . are not enforceable by contempt”).
Essentially, the trial court found that, because the Former Husband’s
$300,000 payment obligation was included in the MSA provision labelled
8
“Alimony,” and because the MSA contained a separate provision labelled
“Equitable Division of Assets and Liabilities,” the MSA was ambiguous as to
whether the $300,000 payment was for “support” or “equitable distribution.”3
The trial court’s reasoning is conspicuous in paragraph 26 of the order on
appeal when it found: “The term ‘Alimony’ (twice mentioned in the same
paragraph) should be interpreted for exactly what it suggests [sic] ‘Alimony’
and not as equitable distribution of assets as Husband would suggest.”
Because of its determination that the Alimony Provision was
ambiguous, the trial court admitted extensive parol evidence as to the
parties’ intent regarding this MSA provision and, based on such parol
evidence, found that the Former Wife had limited earning capacity and
intended to use the funds to buy a house. Therefore, the trial court
determined, the lump sum alimony payment was for support.
While it is true that, where a court-approved marital settlement
agreement does not specify the nature of the lump sum alimony, the trial
3 The trial court’s order supports its ambiguity finding by noting that the MSA
was drafted by the Former Husband’s attorney. It points to section 18(C) of
the MSA wherein the parties release each other for any “alimony, support or
maintenance,” except as provided in the MSA. With regard to this release
provision, the trial court concluded that such a provision would have been
unnecessary unless the $300,000 payment obligation was characterized as
a “support” payment. As discussed, infra, we disagree with the trial court’s
construction of this provision.
9
court must make the characterization in the context of the enforcement
proceeding, Pipitone, 23 So. 3d at 136, it is equally true that, where a marital
settlement agreement is unambiguous, the trial court errs by admitting parol
evidence to vary the agreement’s terms. See Kipp v. Kipp, 844 So. 2d 691,
694 (Fla. 4th DCA 2003). In interpreting a marital settlement agreement’s
terms to determine whether an ambiguity exists, the trial court must look
beyond a single paragraph to the “nature and substance of the whole
agreement.” Pipitone, 23 So. 3d at 138.
With these principles in mind, our review of the entire MSA reveals no
ambiguity regarding the parties’ intent for the Former Husband’s $300,000
payment obligation: it was a non-modifiable, lump sum alimony payment to
be paid in exchange for the Former Wife’s interests in the Church, the home,
the real property and the business. The sentence in the Alimony Provision
immediately following the Former Husband’s $300,000 obligation
unequivocally states: “This money represents the Wife’s claim of a half
interest in the Ochosi Yoruba Church, Inc. which is the Husband’s non-profit
organization.”
While the Alimony Provision does not specifically delineate what
property is included in the Wife’s half interest in the Church, several
provisions of the MSA under the heading “Equitable Division of Assets and
10
Liabilities” do describe the property being surrendered by the Former Wife,
notably the real property and the business. In turn, the real property means
both the Church building and the home as the premises comprise both. In
furtherance of these provisions, section 11 of the MSA expressly requires
the parties to execute “any deed, closing statement, bill of sale or transfer of
title” necessary to carry out the MSA’s terms.
In section 18(C) of the MSA, the parties release each other from
“alimony, support or maintenance, except as set forth herein.” Contrary to
the trial court’s conclusion (see footnote 3, supra), this provision does not
render the MSA ambiguous. The provision simply states that each party is
released from claims for “alimony, support or maintenance” other than those
expressed in the Alimony Provision and section 9’s child support obligations
provision.
Based on our de novo review of the MSA, we conclude that the MSA
unambiguously characterizes the Former Husband’s lump sum alimony
obligation as payment to effect a distribution of marital property. Therefore,
we reverse those portions of the order determining that the Alimony Provision
was ambiguous (i.e., paragraphs 17 through 29 of the order). Further,
because certain factual findings contained in the trial court’s order were
reached based upon the trial court’s erroneous determination that the
11
Alimony Provision was ambiguous, we vacate those portions of the order
containing factual findings based on parol evidence admitted for the purpose
of determining the parties’ intent related to the Alimony Provision (i.e.,
paragraphs 30 through 37 of the order).
Concluding that the MSA’s Alimony Provision obligation is to effect an
equitable distribution of the couple’s property, and therefore is not subject to
contempt enforcement, we quash those portions of the order seeking to
enforce the order through the trial court’s contempt powers. See Bongiorno,
920 So. 2d at 1210.
B. Other Factual Findings and Conclusions of Law in the Order
The Former Husband also challenges the trial court’s factual findings
related to the Former Husband’s payment history (i.e., paragraphs 38-58 of
the order). Without further elaboration, we affirm those factual findings
because they are supported by competent substantial evidence. See
Hooker, 220 So. 3d at 403.
Finally, the Former Husband challenges the trial court’s factual findings
and conclusions of law related to the Former Husband’s assertion that the
Former Wife’s claim is barred by the doctrine of laches (paragraphs 5
12
through 16 of the order). Again, without further elaboration, we affirm these
findings and conclusions.
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III. Conclusion
Because we conclude that the parties intended the unambiguous
Alimony Provision of the MSA to serve as a non-modifiable means to
equitably distribute their marital property in the Church (including the value
of the real property, their home and their business), we both vacate the trial
court’s findings of fact made in reliance of parol evidence and quash the
portion of the order holding the Former Husband in contempt. We affirm the
trial court’s findings of fact and conclusions of law as they relate to the
Former Husband’s payments under the Alimony Provision because they are
supported by competent substantial evidence. We also affirm the trial court’s
findings that the Former Wife’s claim is not barred by laches.
Outcome: We remand for proceedings consistent with this opinion.
Affirmed in part, reversed in part, vacated in part, quashed in part, and
remanded.
Plaintiff's Experts:
Defendant's Experts:
Comments: