       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            KEITH WILLIAMS,
                               Appellant,

                                     v.

                         PENELOPE WILLIAMS,
                              Appellee.

                              No. 4D17-2834

                              [July 11, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Edward A. Garrison, Judge; L.T. Case No.
502014DR003451XXXXMB.

    Abigail Beebe of The Law Office of Abigail Beebe, P.A., West Palm Beach,
for appellant.

    Daniel J. Koleos of Koleos Rosenberg McMahon P.L., Fort Lauderdale,
for appellee.

FORST, J.

   Appellant Keith Williams appeals from the denial of his motion for
enforcement and sanctions as to Appellee Penelope Williams’s failure to
comply with a provision of their marital settlement agreement. Although
the trial court found that Appellee had breached this provision, it denied
the motion for enforcement based on its misunderstanding that it could
not compel Appellee to comply with the term at issue. Accordingly, we
reverse and remand for further proceedings.

                               Background

    The parties’ marriage of twenty-five years was dissolved by a final
judgment of dissolution which incorporated their marital settlement
agreement. The relevant, contested provision of the agreement is found in
paragraph 8, which discusses the equitable distribution of the marital
home, and provides in pertinent part that “[o]n or before June 1, 2017, the
Wife shall make all reasonable efforts to refinance this real property . .
. .” (emphasis added).
    In June of 2017, Appellant filed a motion to enforce Appellee’s
compliance with paragraph 8, arguing that she had not made “all
reasonable efforts” to refinance prior to the June 1st deadline. At the
hearing on the motion, Appellee acknowledged that she never applied to
refinance the marital home. The trial court found that she “made no effort
whatsoever to refinance,” thus breaching paragraph 8. However, the court
stated that it did not have the authority to compel Appellee’s performance—
“as equitable distribution, the law is clear that that’s not enforceable by
contempt”—and the motion to enforce was denied.

                                 Analysis

   A marital settlement agreement is to be interpreted and is construed
under a de novo review. Reilly v. Reilly, 94 So. 3d 693, 696 (Fla. 4th DCA
2012). Florida law favors the settlement of family law disputes and courts
will enforce them when possible. Spiegel v. H. Allen Holmes, Inc., 834 So.
2d 295, 297 (Fla. 4th DCA 2002).

   When a court enters final judgment of dissolution and incorporates a
marriage settlement agreement by reference, the court retains jurisdiction
to enforce the terms of the final judgment and settlement as necessary.
Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003). Florida
Family Law Rule 12.570 sets forth various methods to enforce a judgment,
including compelling performance of a specific act. Id. This rule is limited
by the Florida Constitution’s prohibition on jailing debtors. Art. I, §11,
Fla. Const.; see also Riley v. Riley, 509 So. 2d 1366, 1369 (Fla. 5th DCA
1987) (“[C]ontempt power is limited by [Florida’s Constitution] and other
traditional limitations on the use of contempt powers where there are
alternative adequate legal remedies.” (footnote omitted)).

    Equitable distribution of marital property is generally considered a debt
owed to a former spouse with any payments being enforceable only as
ordinary claims between a creditor and a debtor. See Simpson v. Simpson,
68 So. 3d 958, 961 (Fla. 4th DCA 2011); Burke v. Burke, 336 So. 2d 1237,
1238 (Fla. 4th DCA 1976). However, when equitable distribution requires
the performance of an act, and not the payment of money, the trial court
can enforce the provision through contempt without running afoul of our
constitution. See Burke, 336 So. 2d at 1238 (affirming a portion of the
trial court’s contempt order where the former husband failed to execute
and deliver certain documents which would release the former wife’s
interest in a note and mortgage and transfer certain securities to the
former wife—acts not involving the payment of money); Roth v. Roth, 973
So. 2d 580, 592 (Fla. 2d DCA 2008) (similar); Riley, 509 So. 2d at 1369
(affirming contempt order premised on former husband’s failure to


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    designate his former wife as the primary beneficiary of a life insurance
    policy, as required by the property settlement agreement).

       Turning to the instant case, paragraph 8 required Appellee to make
    reasonable efforts to refinance the real property. She did not. As in the
    cases cited in the preceding paragraph, there was an agreement by one of
    the parties to perform an act. This agreement can and should be enforced
    pursuant to Florida Family Law Rule 12.570(c). 1

       The trial court correctly found that Appellee breached the parties’
    agreement. The court, however, erred in failing to further determine
    whether Appellee’s failure to comply was willful and deliberate and not
    caused by an inability to comply. If the trial court on remand determines
    that Appellee’s failure was voluntary, then the trial court will be obligated
    to issue an order compelling Appellee to perform in accordance with the
    “reasonable efforts” provision set forth in paragraph 8. See Burke, 336 So.
    2d at 1238; Roth, 973 So. 2d at 592.

                                    Conclusion

        We reverse the trial court’s denial of Appellant’s motion to enforce
    because paragraph 8 stated that Appellee “shall” do a specific act, she
    failed to do so, and the trial court had the power to enforce her compliance.
    Accordingly, we reverse and remand for further proceedings consistent
    with this opinion.

       Reversed and remanded.

    DAMOORGIAN and KLINGENSMITH, JJ., concur.

                                *         *         *

       Not final until disposition of timely filed motion for rehearing.




1 Any argument that performance could not be compelled because the time to perform
had lapsed is rejected because performing by June 1, 2017 was not material. See
Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1100 (Fla. 4th DCA 2012) (naming a date
upon which an act should be performed does not in and of itself result in establishing
that time is of the essence or an essential part of the agreement).
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