       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                             HOWARD ELIAS,
                               Appellant,

                                     v.

   CINDY ELIAS, MAX ELIAS, JOYCE ELIAS, MAHOGANY REALITY,
  INC., ELITE SERVICES, INC., J.M.K. FAMILY ENTERPRISES, ONE
   ROYAL PALM PARTNERS, ONE ROYAL PALM ASSOCIATES, ONE
     ROYAL PALM HOLDINGS, LLC, PHILIP J. FELDMAN, ELIDIN
     ENTERPRISES, LLC, STEVEN DINGLE and SCOTT DINGLE,
                            Appellees.

                              No. 4D14-1068

                            [December 3, 2014]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    David    E.    French,    Judge;   L.T.    Case    No.
502013DR006430XXXXSB.

  Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire,
PLLC, Fort Lauderdale, for appellant.

  Joel M. Weissman and Ashley M. Johnson of Joel M. Weissman, P.A.,
West Palm Beach, for appellees.

CONNER, J.

   Appellant, Howard Elias (“the husband”), timely appeals the trial
court’s order determining the date of legal separation from his wife,
Appellee, Cindy Elias (“the wife”), and the trial court’s order requiring the
sale of some of the couple’s assets pursuant to a prenuptial agreement.
The husband argues that the trial court erred in determining that the
couple became legally separated pursuant to a judicial proceeding and in
issuing the order of sale. Because we determine that the trial court erred
in the threshold determination that the relevant paragraph in the
prenuptial agreement was unambiguous, we reverse. Since this renders
the trial court’s ultimate rulings moot, we remand for further proceedings.
                    Pertinent Facts and Trial Proceedings

    The husband and the wife entered into a prenuptial agreement.
Pertinent to this appeal is a paragraph within the prenuptial agreement
regarding the sale of some of the couple’s joint assets upon becoming
“legally separated.” The paragraph states:

         4. Termination of Marriage; Separation. If the marriage
      shall be judicially terminated, or, if the parties become legally
      separated pursuant to judicial proceedings or an
      agreement, any property owned by the parties as tenants in
      common, joint tenants with right of survivorship, or tenants
      by the entirety, unless the parties then agree in writing to the
      contrary, shall be sold and the net proceeds of sale shall be
      distributed between the parties in equal shares or in such
      other proportions as may have been agreed by the parties by
      written agreement or in accordance with their respective
      ownership interests as tenants in common as shall be
      conclusively determined by the applicable instrument.

After signing the prenuptial agreement, the husband and the wife married.

   Subsequently, the wife petitioned for dissolution of marriage. Next, the
wife filed a motion to determine that a legal separation had occurred
between the parties as of the date of the filing of the petition for dissolution
of marriage, or a subsequent date. Simultaneously, the wife filed a motion
to determine the items to be sold pursuant to the prenuptial agreement.

   The trial court held a hearing on the wife’s motions. At the hearing, the
husband argued that the term “legally separated pursuant to judicial
proceedings,” as used in paragraph four, was ambiguous. Additionally,
when the wife’s attorney attempted to call her to the stand to proffer
evidence, the trial court stated:

      Well, you know, I’m going to shortchange this, because I’ve
      looked at this and I understood what it is. I think once the
      Court has jurisdiction over both of the parties, that’s when the
      separation occurred, and that’s when the assets, everything
      starts coming into play. . . . But once the service was
      perfected, that meant the parties meant that they were going
      to war, and at that particular point, I’m going to rule that as
      far as this - - that the plain meaning of these terms is that the
      parties become legally separated pursuant to judicial
      proceedings. Well, the proceedings started and they were

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      mandatory with regards to both parties, that’s when we had -
      - the Court had jurisdiction over them. That seems to me to
      be a logical point of time.

   After the hearing, the trial court entered a written order granting the
wife’s motion to determine the date of legal separation. The trial court
found that the terms and conditions of the prenuptial agreement were
unambiguous, and determined that the parties became legally separated
on the date that the wife perfected service of her petition for dissolution on
the husband. The trial court also granted the wife’s motion to determine
the assets to be sold, and held that, since the parties were legally
separated, that certain assets of the parties were to be sold. The husband
appeals both of these orders.

                             Appellate Analysis

   As an initial matter, we note that this court granted the wife’s motion
to dismiss the husband’s appeal of the trial court’s order determining the
date of legal separation. Upon reconsideration and in conjunction with
the facts as provided in the full record on appeal, we reverse our previous
order. Cf. Lester v. City of St. Petersburg, 190 So. 2d 307 (Fla. 1966); Am.
Bridge v. Kromis, 555 So. 2d 1235 (Fla. 5th DCA 1989); Hampton v. A.
Duda & Sons, Inc., 511 So. 2d 1104 (Fla. 5th DCA 1987). It is now clear
that the trial court’s sale order was based upon its threshold determination
of the date of legal separation, which in turn was premised upon the
conclusion that the prenuptial agreement is unambiguous. Thus, we must
review both orders in conjunction with one another.1

   “A trial court’s interpretation of a prenuptial agreement is reviewed de
novo, as such agreements are governed by the law of contracts.” Taylor v.
Taylor, 1 So. 3d 348, 350 (Fla. 1st DCA 2009). “[T]he standard of review
applicable to the determination of whether a contract is ambiguous is the
de novo standard of review.” Essex Ins. Co. v. Simpler, 911 So. 2d 794 (Fla.
1st DCA 2004).

    Because the trial court’s decision that the parties were legally separated
was based on a finding that the language of the prenuptial agreement was
unambiguous, the threshold determination for us on review is whether the
trial court’s preliminary finding was correct.


1 The court dismissed the appeal regarding the issue of the date of legal
separation because, standing alone, the order is a nonfinal, non-appealable
interlocutory order. See generally Fla. R. App. P. 9.130.

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    “A contract provision is ambiguous if it is ‘rationally susceptible to more
than one construction.’” State, Dep’t. of Transp. v. Fla. Gas Transmission
Co., 126 So. 3d 1095, 1101 (Fla. 4th DCA 2012) (quoting Segal v.
Rhumbline Int’l, Inc., 688 So. 2d 397, 398 (Fla. 4th DCA 1997)). “When a
contract is ambiguous and the parties suggest different interpretations,
the issue of the proper interpretation is an issue of fact requiring the
submission of evidence extrinsic to the contract bearing upon the intent
of the parties.” Fecteau, 585 So. 2d at 1007 (quoting Bacardi v. Bacardi,
386 So. 2d 1201, 1203 (Fla. 3d DCA 1980)) (internal quotation marks
omitted).

   One of the triggering events for the sale of marital property under
paragraph four is “if the parties become legally separated pursuant to
judicial proceedings or an agreement.” In Florida, there is no cause of
action for a legal separation.2 Thus, it is unclear, in the context of Florida
law and the facts of this case, what the language “if the parties become
legally separated pursuant to judicial proceedings” means. Moreover, it is
also unclear, under Florida law and the facts of this case, what the
language “if the parties become legally separated pursuant to . . . an
agreement,” means. For those reasons, we determine that the language “if
the parties become legally separated pursuant to judicial proceedings or
an agreement” in the prenuptial agreement is reasonably susceptible to
more than one construction, and the trial court erred in determining that
the language of the prenuptial agreement was unambiguous. That error
led to the erroneous entry of the orders determining the date the parties
were legally separated and directing the sale of some of the marital assets.

                             Appellate Disposition

   We reverse the trial court’s order determining the date of legal
separation and the trial court’s sale order and direct the trial court to
vacate those orders. Since the trial court did not accept any evidence at
the hearing, because it determined the clause to be unambiguous, we



2 It was suggested in the briefs and in oral argument before the trial court that
the wife’s attorney involved in drafting or negotiating the prenuptial agreement
was a New York attorney. New York law provides a judicial proceeding for a legal
separation of married parties. See § 200, N.Y. Dom. Rel. (2013) (“An action may
be maintained by a husband or wife against the other party to the marriage to
procure a judgment separating the parties from bed and board, forever, or for a
limited time.”). However, a separate clause of the prenuptial agreement made it
clear that interpretation enforcement of the agreement was to be pursuant to
Florida law.

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remand the case so that the trial court may hear evidence as to the
meaning of the clause.

  Reversed and remanded.

WARNER and MAY, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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