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Date: 07-17-2022
Case Style:
YVES MOQUIN v. SYLVIE BERGERON
Case Number: 4D21-27
Judge:
Alan O. Forst
Jonathan D. Gerber
Cory J. Ciklin
concur
Court:
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
On Appeal From The Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County
Scott Suskauer
Judge
Plaintiff's Attorney:
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Defendant's Attorney:
Eddie Stephens and Gina M. Szapucki of Ward, Damon, Posner,
Pheterson & Bleau
Description:
West Palm Beach, Florida - Divorce lawyer represented Appellant with appealing from an order of equitable distribution of two marital residences.
Former Husband married Former Wife in Quebec on July 25, 1992.
Before the parties were married, they signed a July 17, 1992 marriage
contract (“the Marriage Contract”). The Marriage Contract provided as
follows:1
ARTICLE ONE
The future spouses adopt the separate property regime,
pursuant to the provisions of the Civil Code of the Province of
Quebec.
ARTICLE TWO
The future spouses will cover the marital expenses in
proportion to their respective possibilities.
Under the parties’ election of the separate property regime, “each spouse
ha[d] the administration, enjoyment and free disposal of all his or her
property.” Civil Code of Quebec, S.Q. 1991, c 64, art 486 (Can.). It was
undisputed the parties maintained separate accounts and assets
throughout their marriage.
In 2009, the parties—along with a daughter born in 2002—became
permanent Florida residents. Former Husband purchased a family home
in Ocean Ridge (“the Ocean Ridge Residence”) using his separate assets.
The family lived in the Ocean Ridge Residence until July 2017, when they
moved into two neighboring Palm Beach Gardens condominium units
1 While the Marriage Contract was drafted in French, the parties agreed to the
translation quoted in this opinion.
3
(collectively, “the Palm Beach Gardens Condominium”).2 The Palm Beach
Gardens Condominium was titled solely in the name of Former Husband’s
trust, and Former Wife later acknowledged she had not contributed any
monies to the purchase.
Subsequently, in early 2019, Former Wife filed a petition for dissolution
of marriage and other relief. Former Wife’s petition requested: (1) a
parenting plan including equal timesharing; (2) child support pursuant to
section 61.30, Florida Statutes (2019); (3) equitable distribution of marital
assets under section 61.075, Florida Statutes (2019); (4) “all forms of
alimony including, but not limited to, temporary, permanent periodic,
rehabilitative, durational, bridge-the-gap, and lump sum alimony;” and (5)
“temporary and permanent exclusive use, possession, title, and occupancy
of the marital home in Ocean Ridge . . . or the [Palm Beach Gardens
Condominium] marital home . . . .” Former Husband listed the Palm Beach
Gardens Condominium for sale; he had earlier listed the Ocean Ridge
Residence as well.3
In response to Former Wife’s petition, Former Husband filed an
amended answer and counterpetition. In his amended answer, Former
Husband denied the parties had “acquired various marital assets and
incurred liabilities in various titles, jointly and singularly.” Moreover,
Former Husband raised the parties’ July 17, 1992 Marriage Contract as
an affirmative defense, arguing the contract “should govern the
identification and classification of all non-marital properties of the parties
and the distribution of the marital assets . . . .” Similarly, Former
Husband’s counterpetition requested his “separate property . . . be set
aside and awarded solely to [him] pursuant to the terms of the Marriage
Contract . . . .”
Former Wife filed an amended reply and answer to Former Husband’s
counterpetition. In short, Former Wife denied the Marriage Contract
controlled. She asserted, because the parties were domiciled in Florida,
Florida law—or more precisely, Chapter 61—applied to the distribution of
the parties’ assets. In the alternative, Former Wife argued, even if the trial
2 The parties present the neighboring condominium units as if they are a single
marital home. We therefore treat them as a single home.
3 During the pendency of the divorce, Former Husband sold the Ocean Ridge
Residence and the Palm Beach Gardens Condominium. The parties entered two
agreed orders concerning the proceeds from the sale of the properties, with each
party obtaining a percentage of the proceeds and the remainder being placed into
escrow. The agreed orders were entered “without prejudice as to either part[y’s]
claims raised in their pleadings.”
4
court opted to apply the Civil Code of Quebec, “the full Civil Code should
apply—including Quebec’s family patrimony law, which would dictate
much the same result as Chapter 61.”
Due to the parties’ disagreement as to the proper law to apply, Former
Husband filed a “Motion to Enforce and/or Interpret Choice of Law
Provision in Parties’ Marriage Contract” (“Motion to Enforce”). Former
Husband requested the trial court “enforce the parties’ Marriage Contract
and apply the Civil Code of the Province of Quebec to determine the
distribution of all property.” Specifically, Former Husband alleged that
under Article I of the Marriage Contract, the parties “adopted the
Matrimonial Regime of Separation as to Property, as established by the
Civil Code of the Province of Quebec.” Pursuant to the separation as to
property regime, Former Husband asserted “the parties agreed . . . all
property would remain separate upon dissolution of the marriage,
including property acquired during the marriage . . . [and] agreed to be
governed by the Civil Code of the Province of Quebec, regardless of where
they lived in the future.”
Citing to Florida law establishing that a court is required to enforce a
choice-of-law provision in a prenuptial agreement unless it contravenes
public policy, Former Husband argued, because the Marriage Contract did
not contravene public policy and because the parties “kept separate assets
and continually maintained separate accounts throughout the course of
their marriage,” he should “be awarded all property in his name alone
and/or in trust for his benefit,” including the Ocean Ridge Residence and
Palm Beach Gardens Condominium. Moreover, Former Husband
contended that “for the Rules of Family Patrimony to apply, the parties
must be domiciled in Quebec at the time of the dissolution of the
marriage.” (boldface in original).
While Former Wife had previously argued the family patrimony articles
should apply if proceeding under Quebec law, Former Wife subsequently
obtained an expert who opined the family patrimony articles would not
apply based upon Article 3089 of the Civil Code of Quebec—which provides
that the effects of marriage (which includes the family patrimony articles)
are governed by the law of the domicile of the spouses. Consequently, the
parties filed a Joint Pretrial Stipulation, agreeing “the Family Patrimony
Articles of the Civil Code of Quebec do not apply to the partition of property
for spouses who do not reside in Quebec at the time of dissolution of
marriage” and the family patrimony articles did “not apply to the parties
herein who have been residing in Florida since 2007.” The parties also
agreed the Marriage Contract was valid and enforceable and, upon moving
5
to Florida, Former Husband “acquired several pieces of real property, all
of which were titled in his name or the Yves Moquin Revocable Trust.”
Following the Joint Pretrial Stipulation, the parties filed competing
memoranda concerning Former Husband’s Motion to Enforce.
Notwithstanding the mutually agreed upon inapplicability of the family
patrimony articles, Former Wife pointed to Article 3089 of the Civil Code
of Quebec to support her position that the portions of Florida law which
approximate the family patrimony articles would apply. She argued “the
Florida Court must look to Article 3089 of the Civil Code of Quebec and
apply Florida law to determine how to divide the remaining effects of
marriage.”
At the hearing on Former Husband’s Motion to Enforce, the parties’
Quebecois experts testified, reiterating the positions contained within the
parties’ memoranda. Notably, however, Former Wife’s expert testified that
when analyzing Article 3089, “Florida has to decide if there are Effects of
Marriage that govern these parties . . . [such as] ‘imperative laws’ . . . which
apply to the parties, notwithstanding their matrimonial regime.”
Thereafter, the trial court entered an Order on Former Husband’s
Motion to Enforce. The trial court found “no doubt that the provisions of
the [Marriage Contract] must be interpreted under Quebec law.” The trial
court also took note of the parties’ agreement that “the effects of marriage,
along with the Family Patrimony [Articles], do not apply with full force
since the parties no longer reside in Quebec.”
While the trial court agreed that the family patrimony articles did not
apply, the court stated the issue at hand was “whether Article 3089
authorizes . . . any court in a jurisdiction other than Quebec, to utilize its
own laws—insofar as they are . . . reasonably similar—to protect the effects
of marriage that are guaranteed by the Civil Code of Quebec and were
plainly contemplated by the parties by signing a Marriage Contract and
relying upon the laws of Quebec during the pendency of their marriage.”
Finding this was “precisely the purpose of Article 3089,” and that Florida
has provisions for the equitable distribution of property in Chapter 61 that
“align[] with the Family Patrimony [Articles],” the trial court determined
the proceeds from the sale of both the Ocean Ridge Residence and the
Palm Beach Gardens Condominium were “Family Patrimony” subject to
equitable distribution under Chapter 61.
The trial court subsequently conducted a non-jury trial on the petition
and counterpetition. At trial, Former Wife testified she contributed
nothing financially to the purchase, improvement, or maintenance of any
6
of the marital homes during the marriage. Also undisputed was testimony
that the parties maintained separate assets, with Former Husband even
needing at one point to borrow $170,000 from Former Wife.
Subsequently, the trial court entered a final judgment of dissolution of
marriage. The final judgment stated “the only remaining issue for this
Court to decide is how to equitably divide the net proceeds from the sale
of the Ocean Ridge Residence and [Palm Beach Gardens] Condominium
property pursuant to Chapter 61, Florida Statutes.” With respect to
alimony and attorney’s fees and costs, although the court found Former
Wife did not have a need for alimony or attorney’s fees and costs, the trial
court also found that lump sum alimony and attorney’s fees and costs
would have been appropriate had Former Husband prevailed on his
arguments concerning the two marital residences.
Analysis
A. Interpretation of Foreign Law
On appeal, Former Husband argues the parties stipulated the Quebec
family patrimony regime did not apply, and the trial court therefore erred
in determining the Ocean Ridge Residence and Palm Beach Gardens
Condominium were “Family Patrimony.” Former Husband further argues
the trial court misinterpreted Article 3089, as “[t]he real purpose of Article
3089 is to guide the courts of Quebec in whether to apply the law of a
foreign state as ‘the law of the domicile of the spouses’ to determine what
‘effects of marriage’ are binding on divorcing spouses who have property
in a foreign state but are getting divorced in a Quebec court.”
“A trial court’s determination of foreign law is treated as a ruling on a
question of law over which an appellate court exercises plenary [or de novo]
review.” Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So. 2d 4, 5
(Fla. 3d DCA 1993). When reviewing de novo a trial court’s application of
foreign law, “appellate courts are not limited to matters raised by the
parties, but are encouraged to take an active role in ascertaining foreign
law.” Cohen v. Shushan, 212 So. 3d 1113, 1117 (Fla. 2d DCA 2017)
(quoting Twohy v. First Nat’l Bank of Chi., 758 F.2d 1185, 1192 (7th Cir.
1985)). Similarly, “[a] trial court’s interpretation of a prenuptial agreement
is reviewed de novo, as such agreements are governed by the law of
contracts.” Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. 2015).
A “forum court must initially apply its own conflict of law rule with
respect to a contract in order to determine the law it must apply.” In re
Est. of Nicole Santos, 648 So. 2d 277, 280 (Fla. 4th DCA 1995). “In the
7
case of [a] contract, Florida follows the conflicts of laws rule that the United
States Supreme Court established in Scudder v. Union Nat’l Bank, 91 U.S.
406 (1876), which holds, in cases where the place of making the contract
and performing it are not the same, the laws of the place in which it was
made shall govern matters of execution, interpretation and validity.” Id.
“Generally, Florida courts enforce contractual choice-of-law provisions
unless enforcing the chosen forum’s law would contravene strong Florida
public policy.” Lamb v. Lamb, 154 So. 3d 465, 467 (Fla. 5th DCA 2015).
This body of law applies to premarital agreements. See id.; Gal v. Gal,
243 So. 3d 466, 467 (Fla. 5th DCA 2018). Indeed, Chapter 61 has codified
that “[a]ny attempt to apply the law of a foreign country is void if it
contravenes the strong public policy of this state or if the law is unjust or
unreasonable.” § 61.0401(4), Fla. Stat. (2019). However, “[a] contract is
not void, as against public policy, unless it is injurious to the interest of
the public, or contravenes some established interest in society.” Harris v.
Gonzalez, 789 So. 2d 405, 409 (Fla. 4th DCA 2001) (alterations omitted)
(quoting Neiman v. Galloway, 704 So. 2d 1131, 1132 (Fla. 4th DCA 1998)).
Here, Quebec law applies to the parties’ Marriage Contract. Both
parties acknowledge such, and the law supports applying Quebec law to
the Marriage Contract due to its Quebecois origin. See In re Est. of Nicole
Santos, 648 So. 2d at 280. Further, the application of Quebec law to the
parties’ marital property would not contravene public policy in Florida, or
be injurious to the public’s interest, as a prenuptial agreement is
permissible under Florida law. See Mulhern v. Mulhern, 446 So. 2d 1124,
1126 (Fla. 4th DCA 1984) (stating that prenuptial agreements “should be
construed and interpreted in the same manner as other contracts.”).
Thus, under a de novo standard of review, this Court must apply the laws
of Quebec to determine whether the trial court reached the correct result
in equating Chapter 61 with Quebec’s family patrimony articles and
utilizing the portions of Chapter 61 which purportedly approximate the
family patrimony articles.
Quebec is a civil law jurisdiction. Rolls Royce (Can.), Ltd. v. Cayman
Airways, Ltd., 617 F. Supp. 17, 19 (S.D. Fla. 1985). “It is axiomatic that
in civil-law jurisdictions, lawmaking is exclusively the function of the
legislature.” Transportes Aereos Nacionales, S.A., 625 So. 2d at 6.
Pursuant to Quebec statutory law, “[t]he regime of conventional separation
as to property is established by a simple declaration to this effect in the
marriage contract.” Civil Code of Quebec, S.Q. 1991, c 64, art 485 (Can.).
“Under the regime of separation as to property, each spouse has the
administration, enjoyment and free disposal of all his or her property.”
Civil Code of Quebec, S.Q. 1991, c 64, art 486 (Can.).
8
In the instant case, regardless of whether the family patrimony articles
would have applied, the parties specifically stipulated “the Family
Patrimony Articles of the Civil Code of Quebec do not apply to the partition
of property for spouses who do not reside in Quebec at the time of
dissolution of marriage” and the family patrimony articles did “not apply
to the parties herein who have been residing in Florida since 2007.” In
light of such stipulation, the parties’ Marriage Contract—which stated the
parties “adopt[ed] the separate property regime, pursuant to the provisions
of the Civil Code of the Province of Quebec”—was controlling.
Thus, because there existed a valid and enforceable contract directing
the parties to employ the laws of Quebec as those laws pertain to the
parties’ property at the time of separation, the trial court had no need to
turn to Article 3089 of the Civil Code of Quebec.4 Nor did the trial court
have any need to approximate the effects of the family patrimony articles
within Florida law.
Consequently, we conclude the trial court erred in equitably
distributing the property under Chapter 61. Because the testimony was
undisputed that Former Wife had not contributed any funds to the
purchase, improvement, or maintenance of either marital home during the
marriage, and because of the extensive testimony as to the parties’ efforts
in maintaining separate assets, we further conclude Former Husband is
solely entitled to the proceeds from the sale of the Ocean Ridge Residence
and Palm Beach Gardens Condominium.
B. Conditional Alimony and Fees
Former Husband next argues the trial court erred when it
misapprehended important trial testimony. Specifically, Former Husband
contends the trial court erred in finding Former Wife “sacrificed” during
the marriage and further erred in concluding Former Wife had a need for
alimony, arguing the trial court’s conditional award of alimony and
attorney’s fees is unwarranted.
“A trial court has broad discretion in determining and awarding
alimony.” Stough v. Stough, 18 So. 3d 601, 605 (Fla. 1st DCA 2009).
Alimony awards are reviewed under an abuse of discretion standard of
4 Article 3089 provides in relevant part: “The effects of marriage, particularly
those which are binding on all spouses regardless of their matrimonial regime,
are subject to the law of the domicile of the spouses.” Civil Code of Quebec, S.Q.
1991, c 64, art 3089 (Can.).
9
review. Jimenez v. Jimenez, 211 So. 3d 76, 78 (Fla. 4th DCA 2017). An
appellate court “will not reverse an alimony award if it is supported by
competent, substantial evidence.” Kurtanovic v. Kurtanovic, 248 So. 3d
247, 251 (Fla. 1st DCA 2018).
Similarly, “[a] trial court’s ruling on attorneys’ fees in family law actions
is reviewed for an abuse of discretion.” Berg v. Young, 175 So. 3d 863, 870
(Fla. 4th DCA 2015). “An award of attorney’s fees requires competent and
substantial evidence.” Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th
DCA 2006).
“In determining whether to award alimony or maintenance, the court
shall first make a specific factual determination as to whether either party
has an actual need for alimony or maintenance and whether either party
has the ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat.
(2019). The court must “then examine all relevant economic factors,
including but not limited to the . . . factors identified in the statute . . . .”
Gray v. Gray, 103 So. 3d 962, 966 (Fla. 1st DCA 2012); see also §
61.08(2)(a)–(j), Fla. Stat. (2019) (containing said factors).
In granting lump sum alimony, the trial court “should be guided by all
relevant circumstances to ensure ‘equity and justice between the parties.’”
Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980). “A judge may
award lump sum alimony to ensure an equitable distribution of property
acquired during the marriage, provided the evidence reflects (1) a
justification for such lump sum payment and (2) financial ability of the
other spouse to make such payment without substantially endangering
his or her economic status.” Id.
Here, the trial court acknowledged its required role in examining the
factors under section 61.08. The trial court then went through factors (a)
through (j), making written findings as to several of the factors. The court
recognized: (1) the parties’ 26-year marriage; (2) Former Wife’s age at the
time of final judgment; and (3) Former Wife’s “significant contributions to
the marriage,” including her role in assisting the Husband’s career and
raising their child, and her role in managing entertainment to promote the
Husband’s career. Based on those factors, the trial court determined that
if Former Husband had prevailed in his argument that the Ocean Ridge
Residence and Palm Beach Gardens Condominium properties were his
separate property, Former Wife “would have a need for alimony and the
Husband would have the ability to pay.”
We cannot say that the trial court’s conditional award of lump sum
alimony was an abuse of discretion, as the holding was supported by
10
competent, substantial evidence. Indeed, Former Wife testified that it was
ultimately Former Husband’s desire that she not work, that she was a fulltime mother, and she no longer had the opportunity to get back into her
prior line of work. Further, based on Former Husband’s forensic
accountant’s testimony, the trial court found Former Wife’s annual deficit
was $45,252.00, or $3,771.00 per month. This amount was supported by
an Adjusted Monthly Living Expenses Sheet.
“Any determination regarding an appropriate award of attorney’s fees
in proceedings for dissolution of marriage, support, or child custody begins
with section 61.16, Florida Statutes.” Rosen v. Rosen, 696 So. 2d 697,
699 (Fla. 1997). Under section 61.16(1), a trial court may order a party to
pay reasonable attorney’s fees after considering both parties’ financial
resources.
Here, the trial court found Former Husband would have had
significantly more assets had he ultimately prevailed. As we now award
Former Husband all proceeds from the sale of the two marital residences
as his separate property, the trial court may award alimony and attorney’s
fees on remand, should it determine doing so is supported per Rosen.
Outcome: The trial court erred in determining Chapter 61, Florida Statutes
(2019), applied to the distribution of the parties’ property at the time of
dissolution, and therefore further erred in distributing the property under
section 61.075. Accordingly, we reverse and remand with instructions for
the trial court to award Former Husband proceeds from the sale of the
Ocean Ridge Residence and Palm Beach Gardens Condominium as his
separate property.
The trial court’s findings concerning conditional entitlement to alimony
and attorney’s fees are supported by competent, substantial evidence. On
remand, the trial court shall address whether awarding Former Wife some
form(s) of alimony and attorney’s fees is appropriate. When entering its
final judgment, the trial court is reminded to ensure that the correct
documents are attached.5
Plaintiff's Experts:
Defendant's Experts:
Comments: