        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

          CHERYL A. KENNEY f/k/a CHERYL KENNEY-GOFF,
                           Appellant,

                                        v.

                              ROBERT A. GOFF,
                                 Appellee.

                                No. 4D17-2094

                            [ December 12, 2018 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 2003DR010898.

   Sue-Ellen Kenny and Scott D. Glassman of the Law Office of Scott
Glassman, P.A., West Palm Beach, for appellant.

    Angela D. Flaherty of the Flaherty Law Firm, Sarasota, for appellee.

TAYLOR, J.

   The former wife, Cheryl Ann Kenney, appeals a post-judgment “Order
on Multiple Matters,” which: (1) directed the clerk of the circuit court to
make adjustments to the Child Support Enforcement (“CSE”) ledger; (2)
purported to clarify the parties’ final judgment of dissolution of marriage
on the issue of whether a “lump sum rehabilitative alimony” obligation
represented spousal support or equitable distribution; and (3) directed the
clerk to report the file as “closed” for statistical purposes.

    The wife raises five issues on appeal. We write to address the wife’s
first issue—namely, that the trial court erred in treating the lump sum
rehabilitative alimony awarded in the dissolution judgment as being in the
nature of a property settlement. On this issue, we reverse. As to the
remaining issues, we affirm without further comment as to Issues II, III,
and IV, and find that Issue V is not ripe for our consideration. 1


1On Issue V, the wife argues that the trial court erred by entering a judgment
subsuming all of the prior arrearage judgments against the husband, thereby
denying the wife interest on the prior judgments. However, we find that this issue
   Facts

   The parties married in 1986. In 2004, the trial court entered a final
judgment of dissolution of marriage. The final judgment incorporated the
parties’ Marital Settlement Agreement (“MSA”). Pursuant to the MSA, the
husband agreed to pay child support for the parties’ children. The
husband also agreed to pay “Lump Sum Spousal Support” as follows:

      5. LUMP SUM SPOUSAL SUPPORT. The parties hereto do
      specifically agree that the Husband shall pay directly to the
      Wife as full and final settlement of all claims between the
      parties for spousal support, property settlement and all other
      matters, lump sum rehabilitative alimony in the amount of
      THREE HUNDRED SIXTY THOUSAND AND 00/100
      DOLLARS ($360,000.00), payable as follows: the sum of
      THREE THOUSAND THREE HUNDRED THIRTY-THREE AND
      33/100 DOLLARS ($3,333.33) per month on the 1st day of
      each month for a period of 108 months, commencing June 1,
      2003. There shall be a $50.00 late charge for all payments
      not received by the 5th day of each month that a payment is
      due. Said amount due to the Wife is non-modifiable by either
      party regardless of any changes in their respective incomes,
      death or remarriage. This obligation to pay lump sum alimony
      does not terminate on and shall survive the death of Husband,
      and shall be a binding obligation on the estate of Husband.
      Said payments are not taxable for the Wife nor deductible by
      the Husband.

The parties further agreed that this obligation was not subject to discharge
in bankruptcy.

    In the MSA, the parties agreed to the following terms regarding the
division of assets and liabilities: (1) to sell their house and divide the net
proceeds; (2) to divide their personal property and vehicles; (3) to equitably
divide their bank and investment accounts, with the wife making an
equalizing payment to the husband of $6,500; and (4) to split all marital
debt by mutual agreement. The MSA also stated the following in a
provision governing the parties’ obligations: “[The husband] has started
two businesses in Florida, and intends to start more. He agrees to hold
[the wife] harmless from all of the debts and other obligations and liabilities
of these business entities. [The wife] waives any right or interest in any

is not ripe because the trial court has not yet entered any money judgment
subsuming all of the prior arrearage judgments.

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such business entities.”

   From 2008 through 2011, the trial court entered a series of final
judgments against the husband for arrearages on his obligations under
the dissolution judgment.

   Meanwhile, in 2009, the husband received a Chapter 7 bankruptcy
discharge. In the bankruptcy proceeding, the husband reported having
“Domestic Support Obligations” of over $287,000, consisting of past due
spousal support and child support. However, the husband’s obligation
under paragraph 5 of the MSA was not discharged in his bankruptcy. 2

   Subsequently, after extensive post-dissolution litigation in the trial
court, the husband appealed an order denying his motion to vacate two
separate orders addressing support obligations. See Goff v. Kenney-Goff,
145 So. 3d 928, 929 (Fla. 4th DCA 2014) (“Goff I”). We reversed and
remanded “the portion of the order requiring the husband to continue to
pay support for [the parties’ youngest] child.” 3 Id. at 930.

    After the case was remanded, the presiding magistrate ordered the clerk
of court to perform an audit, issue a written report, and make adjustments
to the CSE ledger. The magistrate also ordered the parties to file written
responses identifying their positions with regard to any adjustments or
terms established by the clerk of court.

   The husband filed a response to the audit and a “renewed motion for
clarification and/or request to amend and correct the parties’ case ledger.”
The husband requested the trial court to clarify that Paragraph 5 of the
MSA should be treated as equitable distribution rather than spousal

2 The “lump sum rehabilitative alimony” was not dischargeable under Chapter 7
regardless of whether it was characterized as spousal support or equitable
distribution. See 11 U.S.C. § 523 (5), (15) (2009) (excluding from dischargeability
under Chapter 7 any “domestic support obligation” and any debt to a spouse or
former spouse “that is incurred by the debtor in the course of a divorce or
separation or in connection with a separation agreement, divorce decree or other
order of a court”); In re Okrepka, 533 B.R. 327, 333 & n.16 (Bankr. D. Kan. 2015)
(under the 2005 amendments to the bankruptcy code, while a property
settlement in divorce is dischargeable in a Chapter 13 bankruptcy, a property
settlement in divorce is not dischargeable in a Chapter 7 bankruptcy).
3 The wife suggests that in Goff I, this court rejected the husband’s argument that
paragraph 5 of the MSA constituted equitable distribution. Having reviewed the
opinion and briefs in Goff I, we conclude that the issue concerning the proper
interpretation of paragraph 5 of the MSA was not resolved in Goff I.

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support.

   The wife filed a response to the husband’s renewed motion for
clarification. Among other things, the wife argued that, under the plain
language of the MSA, the lump sum alimony was spousal support, not
equitable distribution.

   At an evidentiary hearing before the magistrate, the evidence showed
the following facts relevant to this opinion. During the marriage, the wife
was the primary caretaker of the children, while the husband was the
breadwinner for the family. However, the husband had no earned income
at the time he entered into the MSA, as he had just been laid off from a
job.

   Prior to entering into the MSA, the husband had incorporated two new
businesses and had entered into contracts whereby “existing businesses
would transfer their assets” to the husband’s businesses. However, the
husband admitted that the transfer of assets did not occur until “[a]fter
the marital settlement agreement was signed.” The husband explained:
“The contracts had been signed, it was waiting for monies to be paid.”

   The husband also testified that he unsuccessfully attempted to modify
the lump sum alimony obligation after he filed for bankruptcy. Prior to
consulting with his current counsel, the husband interpreted Paragraph 5
of the MSA as “a lump sum spousal support obligation.” When asked
whether the lump sum payment had anything to do with the exchange of
a property interest, the husband responded: “It may have. I do not recall.”
However, the husband testified that the wife was aware that he was
pursuing various business interests when the parties entered into the
MSA.

   Similarly, the wife testified that, at the time the parties signed the MSA,
the husband had started the process of buying two businesses. However,
the husband did not close on the businesses until after the MSA was
signed and the parties had split their marital funds.

   After the hearing, the magistrate eventually entered an amended report
and recommendations, issuing findings of fact and conclusions of law that
the trial court later adopted. The wife filed exceptions to the magistrate’s
report, which the trial court denied.

   The trial court ultimately entered its Order on Multiple Matters,
adopting the magistrate’s recommended order. Consistent with the
magistrate’s report, the trial court found that the lump sum payment

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under Paragraph 5 of the MSA was in the nature of a property settlement
or equitable distribution. The trial court further ruled that because the
lump sum payments was for an equitable distribution obligation, it never
should have been included as part of the CSE ledger. The trial court thus
directed the clerk of court to make various adjustments to the CSE ledger.
This appeal ensued.

    Parties’ Arguments

   On appeal, the wife argues that the trial court erred in its determination
regarding the character of the “lump sum rehabilitative alimony” in the
MSA. The wife maintains that the parties’ MSA describes the payments as
“lump sum rehabilitative alimony,” that there is no ambiguity in the term
alimony, and that there is no mention of an equalizing payment which
would be considered as part of an equitable distribution scheme. The wife
further contends that the alimony provision, when viewed in the context
of the entire MSA, was not considered equitable distribution. The wife
complains that the trial court did not engage in an analysis of the parties’
intent at the time the parties entered the MSA. 4

    The husband responds that the factual findings adopted by the trial
court were supported by competent substantial evidence. The husband
contends that Paragraph 5 of the MSA clearly indicated that the husband
would pay the wife an equalizing payment for the resolution of all claims,
including property settlement. The husband asserts that he had started
businesses prior to the execution of the MSA and that he received those
businesses as part of the overall equitable distribution scheme in exchange
for the lump sum payment. The husband also points out that the lump
sum payment was non-modifiable, survived his death, and was not taxable
to the wife.

    Standard of Review

   The interpretation of a marital settlement agreement, like any other
contract, is reviewed de novo. Feliciano v. Munoz-Feliciano, 190 So. 3d
232, 233–34 (Fla. 4th DCA 2016). “Where the terms of a marital settlement
agreement are clear and unambiguous, the parties’ intent must be gleaned
from the four corners of the document.” Levitt v. Levitt, 699 So. 2d 755,
756–57 (Fla. 4th DCA 1997). However, where a marital settlement


4 The wife also raises an equitable estoppel argument based on the husband’s
representations in bankruptcy court, but our resolution of this case makes it
unnecessary to address that argument.

                                     5
agreement is ambiguous, a court may consider extrinsic evidence as well
as the parties’ interpretation of the contract. Id. at 757.

    A trial court’s decision to accept or reject a magistrate’s conclusions is
reviewed for an abuse of discretion. Glaister v. Glaister, 137 So. 3d 513,
516 (Fla. 4th DCA 2014). However, an appellate court will review de novo
the trial court’s decision that the magistrate’s findings of fact “are
supported by competent, substantial evidence and are not clearly
erroneous while giving both the magistrate and the trial court the benefit
of the presumption of correctness.” Id. (quoting In re Drummond, 69 So.
3d 1054, 1057 (Fla. 2d DCA 2011)).

   Analysis

    “Lump sum alimony may provide for equitable distribution of property
or for support.” Pipitone v. Pipitone, 23 So. 3d 131, 136 (Fla. 2d DCA 2009).
While a support award can be enforced by contempt proceedings, an award
for equitable distribution or property division cannot.           Braswell v.
Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). “The remedies
available to enforce an equitable distribution or property division award
are those available to creditors against debtors.” Id.

   Courts look to the substance of the underlying obligations and are not
bound by the parties’ characterization. Id. at 1200. “The trial court should
assess whether (1) alimony payments are made in exchange for a property
interest, (2) the payments are modifiable, (3) the payments terminate upon
remarriage or death, and (4) the payments are deductible from the payor’s
federal income tax and taxable to the payee.” Pipitone, 23 So. 3d at 136.

    As to the first factor, a conclusive test to determine whether periodic
payments constitute equitable distribution payments or support payments
is “whether they are made in exchange or consideration for a transfer of
property interests.” Id. “The lack of evidence suggesting that the
payments are in exchange for property rights or obligations renders
contempt an available remedy for nonpayment.” Id. at 137.

   As to the second factor, “[b]ecause lump sum alimony may be used for
support, but is always nonmodifiable, the nonmodifiability of the
payments is not a reliable indicator that they are intended as equitable
distribution.” Id. Additionally, parties can agree to nonmodifiable support
in a settlement agreement. Id.

  As to the third factor, “language providing termination of payments
upon death or remarriage is consistent with support alimony.” Id.

                                      6
However, “parties can agree to support payments to continue after the
obligor’s death.” Id.

   As to the fourth factor, a provision that alimony payments are
deductible to the obligor and taxable to the recipient “for federal income
tax purposes may indicate that the payments are for support.” Id.

   In this case, the MSA as a whole, coupled with the testimony
concerning the parties’ intent, confirms that the “lump sum rehabilitative
alimony” constituted spousal support rather than equitable distribution.
We must look to the substance of the provision, rather than the parties’
label of “rehabilitative” alimony.

    To be sure, the lump sum rehabilitative alimony is nonmodifiable,
survives the husband’s death, and is not deductible by the husband.
However, while the second, third, and fourth factors of Pipitone weigh in
favor of the husband’s argument that the lump sum alimony should be
treated as equitable distribution, these factors are far less significant than
the first factor. The second, third, and fourth factors are less reliable
indicators of the nature of the obligation, since parties can always agree
to support obligations that are nonmodifiable, nonterminable upon death,
and nondeductible. 5

   Instead, the conclusive factor under Pipitone is whether the lump sum
alimony payments “are made in exchange or consideration for a transfer
of property interests.” Id. Here, Paragraph 5 of the MSA states that the
“lump sum rehabilitative alimony” constituted a “full and final settlement
of all claims between the parties for spousal support, property settlement
and all other matters.”

   Nonetheless, when the MSA is read as a whole and is examined in
conjunction with the parties’ testimony, it is clear that the lump sum
rehabilitative alimony was intended exclusively as spousal support. There
was no evidence indicating that the alimony payments were in exchange
for any valuable property rights or obligations. Paragraph 5 of the MSA
was independent of the equitable distribution scheme. In other provisions
of the MSA, the parties had equitably distributed all of their marital

5 By the same token, the absence of a rehabilitation plan does not preclude a
finding that the “lump sum rehabilitative alimony” was in the nature of spousal
support. “[I]t is well settled that in a dissolution of marriage proceeding, the
parties are free to agree to obligations the trial court could not order in the
absence of an agreement.” Taylor v. Lutz, 134 So. 3d 1146, 1148 (Fla. 1st DCA
2014).

                                       7
property, including their personal property, their financial accounts, and
the proceeds from the expected sale of their home.

   Although the MSA stated that the wife waived any interest in the
husband’s businesses, the parties’ testimony confirms that the husband’s
businesses had no significant value at the time the parties entered into
the MSA. The husband’s businesses were not operating at the time the
parties executed the MSA, and the husband admitted that he had no
earned income at that time. Indeed, although the husband had filed
paperwork to incorporate his businesses and had signed contracts to
purchase the assets of other businesses prior to signing the MSA, he
admitted that the transfer of assets did not occur until after the parties
signed the MSA.

   Likewise, the wife testified without contradiction that, while the
husband had started the process of buying two businesses at the time of
the execution of the MSA, the husband did not close on his purchase of
the businesses until after the parties had signed the MSA and split their
marital funds. Thus, the wife did not have any interest in the assets of the
businesses that the husband purchased after the parties signed the MSA.

   In sum, because the MSA and the record evidence reflect that the lump
sum rehabilitative alimony was independent of the equitable distribution
scheme and was not in exchange for any valuable property rights, the lump
sum rehabilitative alimony constituted spousal support.

   Conclusion

   We reverse the Order on Multiple Matters and remand for the trial court
to treat the lump sum alimony as spousal support rather than equitable
distribution and to conduct any further proceedings not inconsistent with
this opinion.

   Reversed and Remanded.

KLINGENSMITH and KUNTZ, JJ., concur.


                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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