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.

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(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.”

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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

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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

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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

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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.).

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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.).

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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

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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.

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