           IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FIFTH DISTRICT

                                                   NOT FINAL UNTIL TIME EXPIRES TO
                                                   FILE MOTION FOR REHEARING AND
                                                   DISPOSITION THEREOF IF FILED


RICHARD COLINO,

              Appellant,

 v.                                                       Case No. 5D15-2567

ANA M. COLINO,

              Appellee.

________________________________/

Opinion filed August 26, 2016

Appeal from the Circuit Court
for Flagler County,
Michael S. Orfinger, Judge.1

Brett Hartley, of Brett Hartley, P.A.,
Aspen, CO, for Appellant.

Donald Appignani, Palm Coast,
for Appellee.


LAMBERT, J.

       Richard Colino (“Former Husband”) appeals the final judgment dissolving his

marriage to Ana M. Colino (“Former Wife”) following trial. Former Husband argues that




       1  Judge Orfinger did not preside over the trial or enter the final judgment on appeal.
The trial judge recused himself post-judgment, and the case was eventually reassigned
to Judge Orfinger, who entered an order denying a pending motion for rehearing. No
issue has been raised on appeal regarding the effect of the post-judgment recusal of the
trial judge.
the trial court misinterpreted the parties’ prenuptial agreement when it determined that

the home located at 84 Pennypacker Lane, Palm Coast, Florida, (“Pennypacker

property”) was Former Wife’s separate property and awarded the property to her. We

agree.2

       The evidence adduced at trial regarding the Pennypacker property was essentially

undisputed. During the course of the marriage, Former Husband obtained a significant

monetary settlement arising out of a personal injury claim. Former Husband initially

placed the settlement proceeds into an annuity, but he eventually cashed out the annuity

and deposited the funds into an account held by a limited liability company that he owned

and controlled. Former Husband thereafter transferred the funds from the company

account into an account titled solely in Former Wife’s name. The Pennypacker property

was then purchased from funds drawn from Former Wife’s account, and the property was

titled solely in Former Wife’s name. Approximately eight months later, Former Wife

transferred the property by quitclaim deed to Former Husband. Title to this property

remained solely in Former Husband’s name at the time of trial.

       The parties’ prenuptial agreement was admitted into evidence at trial.3        Two

sections of this agreement are material to the resolution of this appeal. Section 1, titled

“Separate Property of Each Party,” provides, in pertinent part:

                Except as otherwise expressly provided in this Agreement,
                each party shall keep and retain sole ownership, entitlement,
                control and power of disposal of his or her separate property
                of every kind and nature, now owned or hereafter acquired by
                such party, free and clear of any interest, rights or claims of


       2  Former Husband raised one other issue on appeal, which we affirm without
further discussion.
       3   Former Wife has not challenged the validity of the agreement.

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              the other party by reason of the marriage or otherwise. These
              rights include the right to dispose of his or her separate
              property by gift, sale, testamentary transfer or in any other
              manner, and to encumber, pledge or hypothecate such
              property. Each party covenants and agrees not to make any
              claim or demand on the separate property of the other party
              or on the heirs, legal representatives, executors or
              administrators of the other party with respect to the separate
              property of the other party . . . .

Section 5 of the agreement is titled “Other Real Estate.” This section states, in pertinent

part:

              The parties from time to time may own real property other than
              the marital residence. If a party acquires such property in his
              or her sole name, it shall be said party’s separate property for
              purposes of this Agreement. . . . The rights of the parties with
              respect to such property shall be governed by this Agreement
              unless they agree to some other treatment of such property in
              a written instrument amending this Agreement.

        At trial, neither party disputed that the Pennypacker property was subject to

distribution pursuant to these two sections of the prenuptial agreement, nor was there

evidence that the agreement had been amended. Despite this property being titled solely

in Former Husband’s name, the trial court found that the property was Former Wife’s

separate property. The court reasoned that, per the terms of the agreement, the property

was “acquired” by Former Wife when it was originally purchased and titled solely in her

name. The court further found that at the time Former Wife executed the quitclaim deed

of the property to Former Husband, “[b]oth parties considered that [Former Husband] was

already the owner of the property” because his funds had been used for the purchase.

Therefore, the court concluded that neither party intended that the later quitclaim deed

into Former Husband’s name constituted an “acquisition” or “transfer” of ownership to him

under the agreement.




                                             3
       “A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as

such agreements are governed by the law of contracts.” Hahamovitch v. Hahamovitch,

174 So. 3d 983, 986 (Fla. 2015) (quoting Taylor v. Taylor, 1 So. 3d 348, 350 (Fla. 1st

DCA 2009)). “Where a contract is clear and unambiguous, it must be enforced pursuant

to its plain language.” Id. (citing Crawford v. Barker, 64 So. 3d 1246, 1255 (Fla. 2011)).

“In such a situation, ‘the language itself is the best evidence of the parties’ intent, and its

plain meaning controls.’” Id. (quoting Crawford, 64 So. 3d at 1255). Furthermore, where,

as here, we are addressing “a question of law arising from undisputed facts,” our review

is de novo. Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010) (citing Kirton v. Fields, 997

So. 2d 349, 352 (Fla. 2008); D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003)).

       When Former Wife first acquired the Pennypacker property in her sole name, by

the plain language of the agreement, this became her separate property. Section 1 of the

agreement permitted Former Wife, as owner of this “separate property,” the right to

dispose of her property by “gift, sale, testamentary transfer or in any other manner,” which

Former Wife did by thereafter executing the quitclaim deed and transferring the property

to Former Husband. At that point, the Pennypacker property became Former Husband’s

“separate property,” and it remained his separate property when he filed his petition for

dissolution of marriage. Furthermore, section 1 of the prenuptial agreement expressly

provided that each party would not make any claim or demand on the separate property

of the other party. Since neither party attempted to vacate or rescind the prenuptial

agreement, the trial court was obligated to enforce its clear terms and distribute the

Pennypacker property to Former Husband. Accordingly, we reverse the award of the




                                              4
Pennypacker property to Former Wife and remand with directions that the trial court enter

an amended final judgment, distributing this property to Former Husband.

       Lastly, in its final judgment, the trial court recognized that, based upon the length

of the parties’ marriage and the terms of the prenuptial agreement, an award of alimony

was permissible. The court found that Former Wife demonstrated a need for alimony but

elected not to award alimony to her due, in part, to its equitable distribution of the parties’

assets. In Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980), the Florida

Supreme Court noted that trial judges in dissolution of marriage cases possess broad

discretionary authority with various remedies available to do equity and justice between

the parties and reminded the intermediate appellate courts to view the awards made by

the trial court in its final judgment as being interrelated and not independent of each other.

Because Former Husband will now own both the Pennypacker property and the parties’

separate marital home,4 we find it appropriate, consistent with Canakaris, for the trial

court, on remand, to revisit its decision whether to award alimony to Former Wife.

Additionally, since the distribution of the Pennypacker property to Former Husband may

result in additional or imputed income to him, we also direct the trial court to reconsider

the child support award. The court may receive additional evidence on these two matters.

       REVERSED and REMANDED, with directions.

LAWSON, C.J., and PALMER, J., concur.




       4Former Wife did not challenge distribution of the marital home which, pursuant to
the terms of the prenuptial agreement, was also Former Husband’s separate property.

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