       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            MICHAEL FAZIO,
                               Appellant,

                                     v.

                             REGINA FAZIO,
                               Appellee.

                              No. 4D17-1562

                              [May 16, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Merrilee Ehrlich, Judge; L.T. Case No. 13-001559 (FMCE
42/90).

  Rocco G. Marucci of Rocco G. Marucci, P.A., Fort Lauderdale, for
appellant.

   Paulina Forrest and Daniel E. Forrest of Law Office of Daniel E. Forrest,
P.A., Plantation, for appellee.

GROSS, J.

   This case concerns the construction of a provision in a marital
settlement agreement. The circuit court held that the provision was “clear
and unambiguous” and entered a final order consistent with the former
wife’s interpretation. Because we find the provision to be ambiguous, we
reverse and remand to the circuit court to hold an evidentiary hearing
where the parties may offer evidence as to the meaning of the provision.

   In 2013, the trial court entered a final judgment for dissolution of
marriage, which incorporated the parties’ mediated settlement agreement
(the “Agreement”). The Agreement contained a provision for the equitable
distribution of the Former Husband’s pension, which provides in pertinent
part:

      The parties agree that they will each retain any and all
      IRA/401K plans held in their individual names. Except that
      the husband has a FRS plan with BSO his employer. The
      wife is entitled to 50% of the marital portion of this plan
      through the entry of a Qualified Domestic Relations Order.
      This QDRO will be entered and the funds transferred within
      the next (30) days. The marital portion is defined as the
      amount from the date of the marriage through the date of
      the filing of the Petition for Dissolution of Marriage.

(Emphasis added) (the “Agreement provision”).

   The parties married in 1987 when the former husband was employed
by the Tamarac Police Department, where he had worked since 1980.
Several years later, the Broward County Sheriff’s Office (“BSO”) absorbed
the Tamarac Police Department. The parties cashed out the Tamarac
pension and spent the money, so that the previous accumulation was not
absorbed into the former husband’s Florida Retirement System (“FRS”)
account with BSO.

  During the marriage, the parties used marital funds to purchase an
enhancement to the FRS pension for the years that the former husband
worked in Tamarac prior to joining BSO.

   The parties disagree about how the Agreement provision applies to the
FRS enhancement that was purchased during the marriage. The wife
contends that the entire pension is marital because the enhancement was
purchased with marital funds; the former husband argues that the
purpose of the Agreement provision was to divide the pension 50/50,
except for the enhancement portion. He says that to obtain a larger slice
of the FRS pie, he paid the wife $100,000 in lump sum alimony and
assumed other debts.

   In Fazio v. Fazio, 181 So. 3d 585 (Fla. 4th DCA 2016), we remanded the
case to the circuit court to rule on whether there was an ambiguity in the
Agreement provision, and if so, to conduct an evidentiary hearing as to the
proper interpretation of the agreement. On remand, the trial judge found
the provision to be clear and unambiguous and awarded the wife 50
percent of the entire FRS plan.

   A marital settlement is construed in accordance with its terms, so that

      [w]here the terms of a marital settlement agreement are clear
      and unambiguous, the parties’ intent must be gleaned from
      the four corners of the document. It is only when a term in a
      marital settlement agreement is ambiguous or unclear that
      the trial court may consider extrinsic evidence as well as the


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      parties’ interpretation of the contract to explain or clarify the
      language.

Jones v. Treasure, 984 So. 2d 634, 636 (Fla. 4th DCA 2008) (quoting Levitt
v. Levitt, 699 So. 2d 755, 756 (Fla. 4th DCA 1997)). “On review, the
appellate court considers whether the contractual provision was actually
ambiguous; if not, ‘the language itself is the best evidence of the parties’
intent, and its plain meaning controls.’” Teague v. Teague, 122 So. 3d 938,
942 (Fla. 4th DCA 2013) (quoting Richter v. Richter, 666 So. 2d 559, 561
(Fla. 4th DCA 1995)). “In determining whether a provision is ambiguous,
the court should consider a ‘reading of the entire agreement [to] clarify
what the parties meant’ by including the provision.” Id. (quoting Bacardi
v. Bacardi, 386 So. 2d 1201, 1203 (Fla. 3d DCA 1980)). “A provision is
ambiguous if ‘it is fairly susceptible to different constructions.’” Id.
(quoting Mariner Cay Prop. Owners Ass’n, Inc. v. Topside Marina, Inc., 714
So. 2d 1130, 1132 (Fla. 4th DCA 1998).

   The Agreement provision is ambiguous because it is fairly susceptible
to different constructions. At the time the provision was drafted in 2013,
both parties were fully aware of the facts surrounding the FRS pension
and the purchased enhancement. If the Agreement intended to split the
pension equally, it could easily have said that the pension would be divided
50/50, a result fully consistent with the purchase of the enhancement
with marital funds and the husband’s employment with BSO during the
marriage.

   Yet, the Agreement refers to the “marital portion” of the FRS plan, a
wording that suggests that the parties contemplated that some portion of
the plan was non-marital. One possible reading of the Agreement
provision is that the marital portion of the plan is only that portion
attributable to the former husband’s time of service with BSO.

   Because of the ambiguity in the Agreement provision, we remand to the
circuit court to hold an evidentiary hearing where the trial court may
consider extrinsic evidence to determine the meaning of the disputed
language.

WARNER and TAYLOR, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.



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