Chopin and Chopin, LP v. Marianne K. Brennan and Daniel Joseph Brennan , 2015 Fla. App. LEXIS 16576 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHOPIN AND CHOPIN, LP,
Appellant,
v.
MARIANNE K. BRENNAN and DANIEL JOSEPH BRENNAN,
Appellees.
No. 4D14-1599
[November 4, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith, Judge; L.T. Case No. 502010DR000678
XXXXNB.
Philip M. Chopin of Chopin & Chopin, LP, West Palm Beach, for
appellant.
Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm
Beach Gardens, for appellee Marianne K. Brennan.
Daniel J. Brennan, Palm Beach Gardens, pro se.
STEVENSON, J.
Chopin and Chopin, LP (the Law Firm) appeals an order entered in this
divorce proceeding, which required the Law Firm to refund to the Former
Husband $12,333.70 that the trial court determined was paid to the Law
Firm as “attorneys’ fees” to purge a contempt order. For the reasons stated
below, we reverse and remand for an evidentiary hearing.
On July 13, 2012, the trial court found the Former Husband in indirect
contempt for failure to pay alimony. To purge the contempt, he was
required to pay the alimony arrearage plus the Former Wife’s attorneys’
fees for bringing the contempt motion ($7,799.69). The Former Husband
appealed the contempt order, and his appeal was consolidated with his
prior appeal of the dissolution order on the merits.
While the appeals were pending, the Former Wife filed a second motion
for contempt, again seeking unpaid alimony. In her second motion, the
Former Wife acknowledged that the Former Husband had paid his
previous support obligations “in full, to purge the contempt and avoid
incarceration.” She alleged, however, that he had again accrued an
alimony arrearage.
The parties settled the matter by preparing an Agreed Order. The
Agreed Order recognized an alimony arrearage in the amount of
$33,112.56 and provided that the Former Husband satisfy the alimony
arrearage by paying $20,778.86 through the Florida State Disbursement
Unit and $12,333.70 “payable to the Trust Account of Chopin & Chopin,
LP.”1
Shortly after the Agreed Order was entered, this court issued its
decision in Brennan v. Brennan, 122 So. 3d 923 (Fla. 4th DCA 2013),
reversing the dissolution order in part and remanding. Brennan also
reversed the post-judgment contempt order, including the requirement
that the Former Husband pay the Former Wife’s attorneys’ fees as an
additional purge amount.
Following issuance of the mandate in Brennan, on remand, the trial
court held a hearing to determine numerous issues, including the amount
of alimony the Former Husband would owe going forward and what credits
he should receive for overpayments (if any). At the evidentiary hearing,
the Former Husband testified that he paid $12,333.70 to the Law Firm as
attorneys’ fees to purge the contempt. By its order, the trial court found
that the Law Firm should reimburse the Former Husband $12,333.70
because the contempt order was vacated by this court’s decision in
Brennan.
In this appeal, the Former Husband concedes that his testimony was
erroneous. Appearing pro se, he admits that of the $12,333.70 paid to the
Law Firm, only $7,799.69 (the amount specified in the reversed contempt
order) should be refunded. The Law Firm and the Former Wife2 argue that
all of the money paid to the Law Firm was past-due alimony and that none
of it was paid by the Former Husband to purge the contempt.
The Agreed Order is in the nature of a settlement agreement.
Settlement agreements are contractual and are interpreted and governed
by contract law. Barone v. Rogers, 930 So. 2d 761, 763–64 (Fla. 4th DCA
2006). Whether an ambiguity exists in a contract is a question of law
subject to the de novo standard of review. “Language in a contract is
1 Chopin and Chopin, LP, represented the Former Wife at the time.
2 The Former Wife appears as Appellee and filed her own Answer Brief.
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ambiguous where it is ‘fairly susceptible to more than one interpretation.’”
Torwest, Inc. v. Killilea, 942 So. 2d 1019, 1020 (Fla. 4th DCA 2006)
(quoting McInerney v. Klovstad, 935 So. 2d 529, 531–32 (Fla. 5th DCA
2006)).
Because the Agreed Order directs payment by check made payable to
the Law Firm, it is unclear whether the parties intended for the $12,333.70
paid to the Law Firm to include the $7,799.69 in attorneys’ fees previously
ordered to purge the contempt. For this reason, we find the Agreed Order
contains an ambiguity, and we reverse and remand to the trial court to
allow the parties to present parol evidence on this issue.
On remand, if the Former Husband establishes that he paid attorneys’
fees to purge the contempt, then he is entitled to reimbursement in the
amount paid. See Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA
1999) (an award of attorneys’ fees and costs predicated on a reversed or
vacated final judgment also must be reversed).
Reversed and remanded.
LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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