          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1032
                 _____________________________

YVETTE D. QUILLEN, former wife,

    Appellant,

    v.

WILLIAM E. QUILLEN, former
husband,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
John I. Guy, Judge.

                          May 3, 2018


JAY, J.

     Yvette D. Quillen (“former wife”) appeals the trial court’s
order dismissing her Supplemental Petition for Modification and
Amended Motion for Civil Contempt and Enforcement. The trial
court determined—based on the “four corners” of the parties’
Consent Final Judgment of Dissolution of Marriage and its “clear
and unambiguous” language—that the alimony obligation of
William E. Quillen (“former husband”) terminated once the
parties’ youngest child reached the age of majority. Thus, it
dismissed the former wife’s original Motion for Civil Contempt and
Enforcement. In addition—because it concluded there were “no
outstanding alimony obligations”—the trial court held that the
former wife’s Supplemental Petition for Modification and
Amended Motion for Civil Contempt and Enforcement were “moot
and therefore dismissed.” For the reasons that follow, we reverse
and remand for further proceedings.

                                 I.

    Before reaching the merits of this appeal, we must first
address the procedural posture of the case as it existed below. It is
necessary that we do so to address the events that led to the trial
court’s decision to grant the motion to dismiss the motion for civil
contempt and enforcement.

                                 A.

     In November 2016, the former wife filed her Motion for Civil
Contempt and Enforcement. In her motion, the former wife alleged
that a Consent Final Judgment of Dissolution of Marriage
(alternatively, “CFJ”) had been approved and entered on May 2,
2003, obligating the former husband to pay her $500 per month in
alimony, while requiring the former wife to pay the former
husband $500 per month in child support. She further asserted
that the provisions of the CFJ addressing alimony and child
support provided that the former husband’s alimony obligation
would be offset by the former wife’s support obligation “and vice
versa.” The former wife then alleged that the parties’ youngest
child had reached the age of majority in September 2011, “thereby
eliminating any claim to an offset of the alimony obligation owed
to the Former Wife.”

     Accordingly, the former wife claimed that the former
husband’s alimony obligation had remained “fully due since
October, 2011” through the date of the former wife’s motion, yet
the former husband failed to honor that obligation. Therefore, the
former wife contended that she was entitled to recover the accrued
alimony arrearage from the former husband, as well as ongoing
monthly alimony in the amount awarded in the CFJ. She also
alleged that the former husband should be held in contempt for his
failure to meet his monthly alimony obligation. The CFJ was not
appended to the motion.

   “Motions” in family practice matters are controlled by Florida
Family Law Rule of Procedure 12.100(b), which has its counterpart

                                 2
in Florida Rule of Civil Procedure 1.100(b). Rule 12.100(b) provides
that “[a]n application to the court for an order must be made by
motion which must . . . state with particularity the grounds
therefor, and must set forth the relief or order sought.” It is a tenet
of motion practice that—while written responses to motions are
not required—when the non-moving party opposes a motion, it
may file a response or a memorandum of law in opposition to the
motion. See generally The Florida Bar Continuing Legal Education
Materials, Florida Civil Trial Preparation: Motion Practice
(Eighth ed. 2017).

     In the present case, however, the former husband did not file
a response or a memorandum of law in opposition to the former
wife’s motion. Instead, he filed a “motion to dismiss” the former
wife’s motion, arguing that the plain and unambiguous language
of the CFJ established that no alimony obligation existed once the
youngest child reached the age of majority and the former wife’s
child support obligation ceased. In essence, then, the former
husband filed a defensive motion. But defensive motions are—by
rule—directed only to pleadings. See Philip J. Padovano, 5 West’s
Florida Practice Series, Civil Practice § 7:27 (2017-18 ed.) (“[A]
party may move to dismiss a pleading if the motion to dismiss
asserts a defense that can be raised by motion . . . .”). And, more
pertinent to the present discussion, “a motion is not a pleading.”
Bruce J. Berman & Peter D. Webster, 4 West Florida Practice
Series, Civil Procedure § 1.100:6 (April 2017) (footnote omitted);
see also Boca Burger, Inc. v. Forum, 912 So. 2d 561, 567 (Fla. 2005)
(“[A] motion to dismiss is not a ‘responsive pleading’ because it is
not a ‘pleading’ under the rules. See Fla. R. Civ. P. 1.100(a).”);
Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1262-63
(Fla. 1988) (correcting a statement that the term “pled” included
filing motions); Viering v. Fla. Comm’n on Human Relations, 128
So. 3d 967, 969-70 (Fla. 1st DCA 2013) (“Motions are not
pleadings.”); N.S. v. Dep’t of Children & Families, 119 So. 3d 558,
561 (Fla. 5th DCA 2013) (emphasis in original) (“It is well settled
that ‘[a] motion is not a pleading.’” (quoting Sardon Found. v. New
Horizons Serv. Dogs, Inc., 852 So. 2d 416, 421 (Fla. 5th DCA
2003))).

    Instead, Florida Family Law Rule of Procedure 12.140(b), as
does its equivalent in Florida Rule of Civil Procedure 1.140(b),

                                  3
requires “[e]very defense in law or fact to a claim for relief in a
pleading must be asserted in the responsive pleading, if one is
required, but the following responses may be made by motion at
the option of the pleader: . . . (6) failure to state a cause of action .
. . .” (Emphasis added.) In the best light, the former husband’s
motion to dismiss might be viewed as moving to dismiss for failure
to state a cause of action. But it nonetheless remained a motion to
dismiss a motion—not a pleading—and, therefore, it was not an
authorized response to the former wife’s motion under the
applicable rules.

     In the time between the former husband’s service of his
motion to dismiss and the trial court’s entry of its currently order
on appeal, the former wife filed her Supplemental Petition for
Modification and Amended Motion for Civil Contempt and
Enforcement. Florida Family Law Rule of Procedure 12.110(d),
entitled “Pleadings,” provides that “[w]hen the nature of an action
permits pleadings subsequent to final judgment and the
jurisdiction of the court over the parties has not terminated, the
initial pleading subsequent to final judgment must be designated
a supplemental petition.” In paragraph 10 of the CFJ, it was
agreed that the trial court would “retain jurisdiction to enforce,
and where appropriate, to modify the terms hereof upon
application by either party for enforcement or modification of any
provision of the consent final judgment herein.” As part of the
order granting the motion to dismiss, the former wife’s
Supplemental Petition for Modification was also dismissed. 1




     1Because the Order Granting Motion to Dismiss “constitutes
an end to the judicial labor in the cause, and nothing further
remains to be done by the court to effectuate a termination of the
cause as between the parties directly affected,” it is a final order
subject to plenary appeal. See S.L.T. Warehouse Co. v. Webb, 304
So. 2d 97, 99 (Fla. 1974) (footnote omitted); see also Bucsit v.
Bucsit, 229 So. 3d 430, 431 n.1 (Fla. 1st DCA 2017) (“[T]he orders
entered in modification proceedings have all of the aspects of final
judgments. We therefore conclude that they are final judgments,
subject to motions for rehearing under Florida Rule of Civil
                                   4
                                B.

    We now turn our focus to the merits of the appeal.

     After nineteen years of marriage, the former wife filed a
Petition for Dissolution of Marriage in June 2002. Among other
things, the former wife sought entitlement “to alimony: temporary,
permanent periodic, lump sum and rehabilitative.” Three children
were born of the marriage, but by that point, only two remained
minors. Following mediation in 2003, the parties executed, and the
trial court approved, the CFJ. Under the terms of the CFJ, the
parties were awarded shared parental responsibility, but the
former husband was designated the primary residential custodian.
In terms of child support and alimony, the CFJ made the following
provisions in paragraphs 4 and 7, respectively:

         4. CHILD SUPPORT: The parties agree that under
    the Child Support Guidelines and facts of this case, the
    Wife’s child support obligation for the two remaining
    minor children . . . is and shall be $500.00 per month. Said
    child support shall be payable by the Wife directly to the
    Husband on the first day of the month following the entry
    of this Consent Final Judgment. Due to the Husband’s
    alimony obligation, as specified below, the parties agree
    that it will be unnecessary for the Wife to make actual
    payment of her child support obligation to the Husband.
    In other words, the child support obligation and alimony
    obligation shall offset each other on a dollar for dollar
    basis. The Husband waives any right or entitlement to
    retroactive child support.

         ....

         7. ALIMONY: The parties agree that under the facts
    of this case, the Husband’s alimony obligation is and
    shall be $500.00 per month. Said obligation shall be
    payable by the Husband directly to the Wife on the first
    day of the month following the entry of this Consent Final

Procedure 1.530(a), and appealable as plenary appeals.” (quoting
Roshkind v. Roshkind, 717 So. 2d 544, 544 (Fla. 4th DCA 1997))).

                                 5
    Judgment. Due to the Wife’s child support obligation, as
    specified above, the parties agree that it will be
    unnecessary for the Husband to make actual payment of
    his obligation to the Wife. In other words, the child
    support obligation and alimony obligation shall offset
    each other on a dollar for dollar basis. The Wife waives
    any right or entitlement to retroactive [temporary]
    alimony.

(Emphasis added.)

     In her supplemental petition, the former wife noted that all
three of the parties’ children had reached the age of majority, and
based on their majority status, she asked the trial court to
terminate her child support obligation under section 61.13(1)(a)2.,
Florida Statutes. She went on to allege that there had been
“multiple substantial changes of circumstances” since the entry of
the CFJ, including (1) the former wife’s chronic illnesses hindering
her ability to find employment and placing “significant limitations
on the type of work she [could] perform”; (2) the former wife’s
collecting disability and workers’ compensation benefits; (3) the
former wife’s belief that the former husband owned several
businesses and that his income had increased significantly,
thereby requiring the court’s reevaluation of his ability to pay and
the amount of alimony; and (4) the former wife’s having not
received a single payment of alimony from the former husband as
contemplated under the terms of the CFJ, resulting in her inability
“to make ends meet [and] afford basic necessities” and causing her
to run “a significant [monthly] deficit.” Based on the foregoing, the
former wife requested an order modifying the CFJ to terminate
child support and “provide for an upward shift and modification of
the alimony obligation.”

     The Amended Motion for Civil Contempt and Enforcement,
contained in the petition under separate heading, recognized that
the parties had been married for nineteen years and, therefore, the
marriage was presumptively long-term. It averred that the former
husband had owed the former wife monthly alimony of $500 since
October 2011—after the parties’ youngest child reached the age of
majority—but had willfully failed to pay alimony to her while
having the ability to do so, entitling her to recover the alimony

                                 6
arrearage and to receive ongoing and future alimony. The former
wife therefore moved the court to hold the former husband in
contempt.

    Subsequently, after a hearing was held on the former
husband’s Motion to Dismiss, 2 the trial court entered its Order
Granting Motion to Dismiss in February 2017. In its order, the
court arrived at the following pertinent “conclusions of law”:

         C. The Court in its review of the Consent Final
    Judgment finds that this was an agreement made
    between the parties and there is no language contained
    in the Consent Final Judgment that could reasonably be
    construed to extend the alimony obligation beyond the
    time the [sic] child support obligation, which ended by
    operation of law.

        D. The Court is confined to the four corners of the
    Consent Final Judgment when the language is clear and
    unambiguous, which it is in this case.



    2  The transcript of the hearing, if one exists, is not contained
in the Record on Appeal. Its absence significantly hinders our
review to the extent that we are unable to ascertain which
arguments now presented on appeal are preserved by their having
first been argued before the trial court. See Rose v. Clements, 973
So. 2d 529, 530 (Fla. 1st DCA 2007) (holding that “[d]ue to the
insufficient record, this court is unable to determine on what basis,
if any, Appellants argued against the motion for summary
judgment because the hearing on this motion was not recorded.
Thus, this court is unable to review the factual or legal basis for
the trial court’s decision.”). However, with the exception of the
former husband’s raising in his Answer Brief the doctrine of laches
directed to the five years the former wife waited after her youngest
child reached the age of majority before filing her petition—which
argument the former wife asserted in her Reply Brief was not
specifically argued below—we are confident that the parties and
the judge were occupied primarily with ascertaining the meaning
of paragraphs 4 and 7 of the CFJ.

                                 7
         E. Counsel for the Former Wife argues that the
    alimony obligation should outlast the child support
    obligation; however, there is no language in the Consent
    Final Judgment to that effect.

         F. The Court also notes that the former Wife’s child
    support obligation ceased several years ago and she has
    not previously filed anything to enforce any outstanding
    obligation against the Former Husband until the most
    recent Motion for Contempt.

         G. Because the court finds there is no outstanding
    alimony obligations, the Former Wife’s Supplemental
    Petition for Modification and Amended Motion for Civil
    Contempt is moot and therefore dismissed.

     The former wife raises four points on appeal addressing the
foregoing conclusions of law. Our analysis follows.

                                  II.

    In acting on the former husband’s motion to dismiss, the trial
court considered its review confined to the “four corners” of the
CFJ. That four corners analysis effectively restricted the trial court’s
consideration to the terms of the CFJ. For clear and unambiguous
agreements, the trial court’s approach is in keeping with the
governing principles of contractual interpretation in Florida. See
Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011) (“Where the
terms of a contract are clear and unambiguous, the parties’ intent
must be gleaned from the four corners of the document.”). In
domestic law, the rule of construction is the same. As we expressed
in Avellone v. Avellone, 951 So. 2d 80 (Fla. 1st DCA 2007):

    A marital settlement agreement is a contract subject to
    interpretation like any other contract. Delissio v. Delissio,
    821 So. 2d 350, 353 (Fla. 1st DCA 2002). . . . Where an
    agreement’s terms are unambiguous, a court must treat
    the written instrument as evidence of the agreement’s
    meaning and the parties’ intention. Id. A court must not
    isolate a single term or group of words and read that part
    in isolation. Id. Rather, the goal is to arrive at a
    reasonable interpretation of the text of the entire

                                   8
    agreement in order to accomplish the agreement’s stated
    meaning and purpose. Id.

951 So. 2d at 83 (emphasis added). To the extent our review is
informed solely by the terms of the CFJ—the equivalent of a
settlement agreement—our standard of review is de novo.
Rosenthal v. Rosenthal, 199 So. 3d 541, 542 (Fla. 1st DCA 2016)
(“Interpretation of marital settlement agreements is subject to de
novo review, just as any other contract interpretation is, at least
in the absence of parol evidence.” (quoting Graham v. Graham, 123
So. 3d 625, 627 (Fla. 1st DCA 2013))). Furthermore,
“[i]nterpretation of a marital settlement agreement as with a
contract is a matter of law putting the appellate court on equal
footing with the trial court as interpreter of the written document.”
Ballantyne v. Ballantyne, 666 So. 2d 957, 958 (Fla. 1st DCA 1996).

     Other principles are equally fundamental to our current
inquiry. “A settlement agreement should not be disturbed unless
found to be ambiguous or in need of clarification, modification, or
interpretation.” Id.; accord Elbaum v. Elbaum, 141 So. 3d 658, 661
(Fla. 4th DCA 2014). If there is no ambiguity, the parties are bound
by the terms of their agreement. Ballantyne, 666 So. 2d at 959. “As
with any contract, the starting point is the language of the
agreement.” Graham v. Graham, 123 So. 3d 625, 627-28 (Fla. 1st
DCA 2013) (citing Duval Motors Co. v. Rogers, 73 So. 3d 261, 265
(Fla. 1st DCA 2011)). A “contract should be considered as a whole,
not in its isolated parts.” Maines v. Davis, 491 So. 2d 1233, 1235
(Fla. 1st DCA 1986).

     Here, the trial court reviewed the relevant language of the
CFJ and judged it unambiguous: “Counsel for the Former Wife
argues that the alimony obligation should outlast the child support
obligation; however, there is no language in the Consent Final
Judgment to that effect.” Our independent review of the same
language, however, persuades us to conclude just the opposite; the
relevant terms concerning the former wife’s right to continuing
alimony are ambiguous. To be sure, paragraph 4 obliged the former
wife to pay to the former husband monthly child support of $500;
and paragraph 7 obliged the former husband to pay to the former
wife monthly alimony in the same amount. And it is equally clear
under the terms of these interrelated paragraphs that the parties

                                 9
intended their respective obligations would offset each other dollar
for dollar, so that neither party would have to pay the other
anything so long as the former wife’s child support obligation
existed. But beyond that—once the former wife’s child support
obligation ended—the parties’ intent regarding the continuation of
the former husband’s monthly alimony obligation is not so certain.
It is at this point that the agreement ceases to dovetail.

     On the one hand, paragraph 7 opens with the indisputable
decree that the former husband’s “alimony obligation is and shall
be $500 per month.” The emphasized language suggests both a
present and a future alimony obligation. But, in contrast, the
express offsets arguably mark an ending point to both obligations
of child support and alimony. Moreover, paragraph 7 lacks any
definition of the form of alimony awarded the former wife, e.g.,
temporary, rehabilitative, or permanent. Nor is there any verbiage
indicating what would happen to the former husband’s alimony
obligation upon either of the contingencies of the former wife’s
remarriage or her death. Thus, while in operation, the language of
paragraphs 4 and 7 unmistakably mean one thing, we conclude
that upon the event of the parties’ youngest child having reached
the age of majority in 2011, any implicit consensus as to the intent
of paragraph 7 vanishes. In this regard, we conclude that the CFJ
contains a latent ambiguity.

    “A latent ambiguity arises ‘where the language employed is
clear and intelligible and suggests but a single meaning, but some
extrinsic fact or extraneous evidence creates a necessity for
interpretation or a choice among two or more possible meanings.”
Toussaint v. Toussaint, 107 So. 3d 474, 477 (Fla. 1st DCA 2013)
(quoting Duval Motors Co., 73 So. 3d at 265 n.2); see also Taylor v.
Taylor, 183 So. 3d 1121, 1122 (Fla. 5th DCA 2015) (“A latent
ambiguity exists where the language of an agreement is facially
clear but an extrinsic fact or extraneous circumstance creates a
need for interpretation or reveals an insufficiency in the contract
or a failure to specify the rights or duties of the parties in certain
situations.”).

     The present agreement illustrates just such “an insufficiency
in the contract or a failure to specify the rights or duties of the
parties in certain situations.” Taylor, 183 So. 3d at 1122.

                                 10
Paragraphs 4 and 7 contain no compass to guide the parties once
the support and alimony offsets were no longer operative.
Moreover, the fact that the parties “read the same document and
came to opposite, but equally reasonable conclusions, confirms the
document's latent ambiguity.” Toussaint, 107 So. 3d at 479.
Consequently, we hold that the trial court erred when it found that
the alimony obligations of the CFJ were unambiguous. Under the
circumstances, parol evidence would be admissible “‘to explain,
clarify or elucidate the ambiguous term[s].’” Id. at 477 (quoting
Strama v. Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st
DCA 2001)).

                               III.

     We reverse the trial court’s Order Granting Motion to
Dismiss, including its dismissal of the former wife’s Supplemental
Petition for Modification. 3 We remand the case with instructions
for the trial court to permit the parties to present parol evidence
to resolve the latent ambiguity concerning their intent in drafting
paragraphs 4 and 7. The trial court is directed to reconsider the
former wife’s Supplemental Petition for Modification, as well as
her Amended Motion for Civil Contempt and Enforcement.

     REVERSED and REMANDED for further proceedings, with
instructions.

B.L. THOMAS, C.J., and BILBREY, J., concur.




    3 We take this opportunity to reiterate that, under paragraph
10 of the CFJ, the trial court retained jurisdiction to enforce or
modify any of its provisions. The law is well settled that “‘the
statutory right to modification, unless specifically waived, is
incorporated as a matter of law in any agreement or judgment
providing for alimony.’” Rosenthal v. Rosenthal, 199 So. 3d 541,
542 (Fla. 1st DCA 2016) (quoting Harmon v. Harmon, 629 So. 2d
1011, 1012 (Fla. 4th DCA 1993)). As evidenced by the express
terms of paragraph 10, the former wife did not waive her right to
seek modification of the CFJ.

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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


William S. Graessle and Jonathan W. Graessle of William S.
Graessle, P.A., Jacksonville, for Appellant.

Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Homer
A.C. Bliss of Homer A.C. Bliss, P.A., Jacksonville, for Appellee.




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