DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MATTHEW JAMES FENDRICH,
Appellant,
v.
MARY MURPHY a/k/a MARY FENDRICH,
Appellee.
No. 4D21-3324
[January 18, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Renatha S. Francis, Judge; L.T. Case No.
502001DR001252XXXXM.
Nicole Nicolette Mace and Curt Sanchez of The Law Offices of Curt
Sanchez, P.A., West Palm Beach, for appellant.
John F. Schutz of John F. Schutz, P.L., Palm Beach Gardens, for
appellee.
MAY, J.
The former husband appeals an enforcement order. He argues the trial
court erred in failing to admit parol evidence on a latent ambiguity in the
marital settlement agreement and in other findings and conclusions
reached in the order. We agree with him in part and reverse.
The final dissolution judgment was entered in 2001. The judgment
incorporated the parties’ marital settlement agreement (“MSA”), which the
court orally entered into the record. The parties’ two children were three
and one at that time.
Section V of the final judgment, entitled “Child Support,” contained
paragraph 6, “Other provisions relating to child support.” It stated:
Each party shall pay one half of all of the college expenses of
each child. The child support shall be reviewed and
readjusted if necessary when the rehabilitative alimony ceases
commensurate with the income of the parties at that time.
The former wife moved for civil contempt/enforcement and filed an
amended motion alleging the former husband refused to pay one half of
the children’s college expenses. The former wife asserted the former
husband had willfully failed to comply with the parties’ final judgment.
The former husband filed requests for admissions and production, but
the former wife objected to all discovery requests. The trial court ordered
the former wife to produce receipts for the college expenses paid. She was
not required to produce the payments’ source nor the date the expenses
were paid.
The former husband filed a response and memorandum in opposition
to the former wife’s amended motion. He argued the term “college
expenses” was latently ambiguous, and parol evidence should have been
admitted to determine the parties’ intent.
He also asserted a laches defense, contending the former wife
unreasonably delayed in advising him of her intent to collect one half of
the “college expenses” incurred to date.
At the evidentiary hearing, the trial court did not admit parol evidence.
The court entered an enforcement order and found:
• The MSA is not ambiguous.
• The final judgment should be construed as having no
limitation on incurred expenses and no restrictions on
where the children attended college.
• The laches defense was unavailable because the former
wife filed for enforcement within the statutory period.
The court entered a money judgment against the former husband for
$127,755.50, although the former wife testified the former husband owed
her $125,583.00. The court denied the former husband’s motion for
reconsideration without a hearing. The former husband now appeals.
We review orders interpreting marital settlement agreements de novo.
White v. White,
141 So. 3d 645, 646 (Fla. 4th DCA 2014).
“A marital settlement agreement is a contract ‘subject to interpretation
like any other contract.’” Elbaum v. Elbaum,
141 So. 3d 658, 661 (Fla. 4th
DCA 2014) (quoting Ballantyne v. Ballantyne,
666 So. 2d 957, 958 (Fla.
2
1st DCA 1996)). We give terms contained in such agreements their plain
meaning and do not disturb them unless those terms are ambiguous, or
otherwise need interpretation, clarification, or modification. Ballantyne,
666 So. 2d at 958.
Therefore, a party seeking to introduce parol evidence must first
establish a contract term is ambiguous. Levitt v. Levitt,
699 So. 2d 755,
756–57 (Fla. 4th DCA 1997). A term is ambiguous when it is “rationally
susceptible to more than one construction.” Elias v. Elias,
152 So. 3d 749,
752 (Fla. 4th DCA 2014). Our goal is to reach a reasonable explanation
of the entire contract to achieve its stated purpose and meaning.
Id. at
752.
A latent ambiguity exists where a contract’s language is
understandable but fails to specify the parties’ rights or duties. Clayton v.
Poggendorf,
237 So. 3d 1041, 1047 (Fla. 4th DCA 2018). A trial court
“must hear parol evidence” to properly interpret the writing when a
contract contains a latent ambiguity. Riera v. Riera,
86 So. 3d 1163, 1166
(Fla. 3d DCA 2012) (quoting Mac-Gray Servs., Inc. v. Savannah Assocs. of
Sarasota, LLC,
915 So. 2d 657, 699 (Fla. 2d DCA 2005)).
In Riera, the Third District found a latent ambiguity in the following
language:
[T]he parties shall pay equally for the cost of the minor child’s
college tuition, books, supplies and any and all other related
expenses. The parties will purchase the Florida four (4) years
Pre-paid College Program the cost of the program shall be
equally paid for by both parties.
Id. at 1165. The court reasoned:
The MSA specifically lists tuition, books, supplies, but does
not list room and board as a covered expense. . . . It thus
becomes paramount to determine whether “any and all related
expenses” refers to expenses related to tuition, books, and
supplies, or whether it refers to all related expenses associated
with attending college. For example, does it include travel
expenses, insurance, spending money, etc.?
Id. at 1167.
Here, the disputed provision in the parties’ marital settlement
agreement is less specific than the provision in Riera. The final judgment
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uses the words “all college expenses,” but fails to define what that
includes.
Like Riera, the parties here were briefly married and divorced when the
children were toddlers. The marital settlement agreement failed to define
“college expenses,” provided no limitations on attendance duration, school
choice, or either parent’s consent or ability to pay. The agreement did not
address how expenses were to be paid, did not provide a remedy if a party
was unable to pay, or what happened if a third party paid on a parent’s
behalf.
As Riera noted:
[The] MSA also does not address how long the parties must
pay for their son’s college expenses or provide for any
modification based on an ability to pay or any disparity in the
resources of the parties. None of these occurrences were
anticipated or included in the MSA, thus creating an
insufficiency, or latent ambiguity, which can only be
resolved in the introduction of parol evidence regarding the
intent of the parties.
Id. at 1167 (emphasis added).
We arrive at the same conclusion as the Third District in Riera. The
marital settlement agreement at issue suffers from the same deficiency.
We therefore reverse and remand the case for further proceedings and the
consideration of parol evidence to determine what the parties intended by
using “all college expenses.”
Next, the former husband argues the trial court erred in failing to
consider his ability to pay before entering the monetary judgment. He
relies on Carlton v. Carlton,
670 So. 2d 1129, 1130 (Fla. 2d DCA 1996).
There, the Second District addressed a trial court’s refusal to consider the
father’s ability to pay in its reasonableness determination for “all of the
college expenses.” Carlton,
670 So. 2d at 1130.
The Second District held a party’s ability to pay should be considered
when determining reasonableness where a parent has no real input
concerning the choice of school.
Id. The court remanded the case for
further proceedings.
Id. We have also held that a party’s ability to pay
should be considered in making a reasonableness determination regarding
school expenses. See Reynolds v. Diamond,
605 So. 2d 525, 527 (Fla. 4th
DCA 1992).
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Here, the trial court determined the expenses were reasonable but did
not address the parties’ ability to pay. The trial court erred in overlooking
the former husband’s ability to pay when determining the reasonableness
of the expenses to be assessed against him.
The former husband also argues the expenses listed in paragraph 12 of
the enforcement order were not based on competent substantial evidence.
He contends the trial court incorrectly took those figures from the former
wife’s proposed order, but those figures conflict with the former wife’s trial
testimony and record evidence. He argues the trial court made multiple
errors in categorizing and totaling the expenses and these errors require
reversal.
The former wife responds the trial court gave both parties the
opportunity to produce evidence and testify as to incurred expenses. She
suggests the trial court simply decided to accept the former wife’s
testimony.
A trial court’s factual findings must be supported by competent
substantial evidence. Prieto v. Smook,
97 So. 3d 916, 917 (Fla. 4th DCA
2012). Appellate courts have consistently reversed orders based on
miscalculations. See, e.g., French v. French,
12 So. 3d 278, 279–280 (Fla.
5th DCA 2009) (remanding for trial court to correct miscalculation related
to monthly spousal expenses); Vitro v. Vitro,
122 So. 3d 382, 387 (Fla. 4th
DCA 2012) (“[W]here the record does not support the trial court’s findings
regarding the amount of alimony awarded, the appellate court will reverse
that award.”) (citation and internal quotation marks omitted).
Here, there are inconsistencies between the trial court’s enforcement
order and the record. For example, the trial court’s enforcement order
states the former wife testified the total incurred expenses for one of the
children was $178,224.00. The former wife testified however that the
incurred expenses totaled $151,621.00.
Further, the former wife provided no receipts associated with that
child’s participation in a study abroad program. The trial court also
determined the former husband owed the former wife $127,755.50
although the former wife testified the amount owed was $125,583.00.
The trial court’s enforcement order contains other similar amounts
unsupported by the former wife’s testimony. Because the enforcement
5
order is not supported by competent substantial evidence, we reverse and
remand the case for further proceedings consistent with this opinion. 1
Reversed and remanded.
DAMOORGIAN and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We find no merit in the former husband’s laches defense and affirm on that
issue without further discussion.
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