                NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                       MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


ROSE MARIE WELLS, as Personal              )
Representative of the Estate of John Scott )
Wells,                                     )
                                           )
             Appellant/Cross-Appellee,     )
                                           )
v.                                         )         Case No. 2D17-721
                                           )
SANDRA WELLS,                              )
                                           )
             Appellee/Cross-Appellant.     )
                                           )

Opinion filed February 14, 2018.

Appeal from the Circuit Court for Pinellas
County; Keith Meyer, Judge.

Jane H. Grossman, St. Petersburg, for
Appellant/Cross-Appellee.

Gregory T. Elliott of Elliott-Berger, P.A.,
Largo, for Appellee/Cross-Appellant.


MORRIS, Judge.

              Rose Marie Wells—as the personal representative (PR) of the estate of

her deceased husband, John Scott Wells—appeals an order on her amended motion to

enforce the final judgment of dissolution of marriage between her deceased husband

and his former wife. The former wife cross-appeals. We reverse the order because the
trial court erred in its interpretation of the marital settlement agreement that was

incorporated into the final judgment of dissolution.

              John Scott Wells, the former husband, and Sandra Wells, the former wife,

divorced in 2001. The final judgment of dissolution incorporated a marital settlement

agreement that contained a provision giving the former wife sole possession of a piece

of marital property until the parties' daughter finished four years of college:

              REAL PROPERTY: The parties own the home located at
              306 22nd Avenue N.E., St. Petersburg, FL, a marital asset
              titled in the Wife's name. There is no mortgage on this
              property. The Wife shall have exclusive use and possession
              of the home through the daughter's minority and college
              years (4 years post high school). The Husband shall
              contribute 50% to taxes, insurance, and necessary repairs
              greater than $500. Upon sale of the home by the Wife, the
              Husband shall be entitled to 50% of the net proceeds.

              The former husband died in 2014. After his death, the PR sought to

enforce the final judgment of dissolution, claiming that the former wife was required to

sell the property and give the former husband's estate fifty percent of the proceeds

since the former wife and former husband's daughter had finished college. The former

wife responded that the provision did not require her to sell the home. She also argued

that the agreement was not enforceable because the former husband had breached the

marital settlement agreement by failing to abide by its terms since 2007 and/or that the

parties had abandoned the agreement.

              After a hearing, the trial court denied the PR's motion in part, concluding

that the agreement did not require the former wife to sell the property. The trial court

stated the following:

              Parties are free to contract as they choose. By the
              unambiguous and clear terms of the contract[,] the [former



                                            -2-
              wife] was granted exclusive use and possession of the
              marital home while the child was in college. Thereafter, if
              the home was sold by [the former wife], the [former husband]
              was entitled to half of the proceeds. To date, the home has
              not been sold by the [former wife]. There is no legal basis
              for the court to deem the express timing of the [the former
              wife's] contract to be illusory. The [c]ontract will be enforced
              pursuant to its plain language.

However, the trial court determined that when the former wife does sell the property, the

former husband's estate has a remedy:

              The [PR] shall be entitled to seek payment of the Final
              Judgment if the subject residence is sold by the [former wife]
              at a time when the [PR] still time [sic] to make such a claim.
              [The PR] is further granted as to the property that is the
              subject of this [m]otion in the amount equal to "fifty percent
              of the net proceeds" if [the former wife] ever sells the
              property.

              On appeal, the PR argues that the provision clearly requires the sale of

the property after the daughter has graduated college and that the trial court's

interpretation of the provision is unreasonable because it ignores the obvious intent of

the parties and essentially grants the former wife a life estate in the home.

              This court reviews de novo the trial court's interpretation of the contract.

See Kaplan v. Bayer, 782 So. 2d 417, 419 (Fla. 2d DCA 2001). "A marital settlement

agreement entered into and ratified by a trial court is subject to interpretation as a

matter of law like any other contract." Hobus v. Crandall, 972 So. 2d 867, 869 (Fla. 2d

DCA 2007). "[T]he actual language used in the contract is the best evidence of the

intent of the parties, and the plain meaning of that language controls." Ebanks v.

Ebanks, 198 So. 3d 712, 715 (Fla. 2d DCA 2016) (quoting Gibney v. Pillifant, 32 So. 3d

784, 785 (Fla. 2d DCA 2010)). However, courts "will not interpret a contract in such a

way as to render provisions meaningless when there is a reasonable interpretation that



                                            -3-
does not do so." Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 877 (Fla. 2d

DCA 2005).

              This court's decision in Salyers v. Good, 443 So. 2d 152, 153 (Fla. 2d

DCA 1983), provides guidance in this case. In Salyers, the parties' settlement

agreement, which was adopted into the dissolution judgment, provided that the husband

"shall have the exclusive use and possession of the property . . . until such time as the

same is sold" and that "[u]pon the sale of the property, the [w]ife shall be entitled to" a

certain amount from the proceeds. Id. This court recognized that "[w]here one spouse

has been awarded possession of the marital home as an incident of the other spouse's

obligation to support, the nonpossessing spouse cannot obtain partition until the other's

right to possession has terminated." Id. (first citing Black v. Miller, 219 So. 2d 106 (Fla.

3d DCA 1969); then citing Pollack v. Pollack, 31 So. 2d 253 (Fla. 1947)). The question

was "whether the settlement agreement as incorporated into the dissolution judgment

gave the husband a continuing right of possession for as long as he wished." Id.

              This court interpreted the "settlement agreement as contemplating that

following the dissolution[,] the parties would endeavor to sell the home at a mutually

advantageous price and that during the interim the husband was entitled to possession."

Id. at 153-54 (relying on Hoemke v. Hoemke, 342 So. 2d 127 (Fla. 2d DCA 1977)). The

court did "not read the agreement as giving the husband the right to live in the home for

the balance of his life by unilaterally refusing to sell." Id. at 154. But see Turner v.

Turner, 599 So. 2d 765, 766 (Fla. 5th DCA 1992) (holding that a similar provision was

"unclear as to whether the parties intended for the wife to have temporary possession of

the marital home until it is sold").




                                             -4-
              In this case, under the language of the parties' settlement agreement, the

former wife was entitled to "exclusive use and possession of the home through the

daughter's minority and college years (4 years post high school)." The provision also

contemplates that the property will be sold. The provision is reasonably read to require

the sale of the property after the daughter has completed college. As in Salyers, the

provision should not be read as giving the former wife the right to live in the property

indefinitely. To interpret the agreement as urged by the former wife would render

meaningless the provision regarding the former wife's use and possession of the

property during the daughter's minority and college years. The language "through the

daughter's minority and college years (4 years post high school)" places a limitation on

the former wife's exclusive use and possession of the home. In other words, the former

wife's exclusive use and possession of the home terminates after "the daughter's

minority and college years (4 years post high school)."

              In conclusion, the trial court erred in its interpretation of the marital

settlement agreement because the agreement requires, now that the daughter has

graduated college, that the former wife sell the property "at a mutually advantageous

price." Salyers, 443 So. 2d at 153-54.

              Having determined that the trial court erred on that issue, we must now

address the former wife's arguments on cross-appeal. The former wife first argues that

the trial court erred in determining that the PR is entitled to proceeds from the sale of

the property because the former husband repudiated the agreement in 2007 by failing to

make payments required under the agreement. She contends that she framed the

issues of breach and rescission/abandonment and that she presented evidence to




                                             -5-
support such defenses. She points to her testimony that the former husband did not

pay his obligations for the property as required by the marital settlement agreement.

              At the conclusion of the hearing, the trial court did not make any findings

regarding the former wife's claims of breach or rescission/abandonment. And in its

order, the trial court did not make an explicit ruling on the issues of breach or

rescission/abandonment. Because there is no explicit finding or determination on these

issues, we remand for the trial court to consider them in the first instance. See Lynn v.

Feldmeth, 849 So. 2d 481, 483 (Fla. 2d DCA 2003) ("We leave it to the trial court to

decide this issue on remand because to do otherwise would require us to rule on the

[issue] in the first instance, which is contrary to our function as a reviewing court.");

Akers v. City of Miami Beach, 745 So. 2d 532, 532 (Fla. 3d DCA 1999) ("[T]his court

should not ordinarily decide issues not ruled on by the trial court in the first instance.").

              The former wife also argues on cross-appeal that the trial court erred in

rendering a declaratory judgment or advisory opinion when it ruled that the PR would be

entitled to proceeds in the future when the former wife sells the property. This issue is

rendered moot by our reversal on the issue raised by the PR.

              Reversed and remanded.


LaROSE, C.J., and SILBERMAN, J., Concur.




                                             -6-
