       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

      ANGELA KAY KIRSCHNER n/k/a ANGELA KAY RAMSIER,
                        Appellant,

                                    v.

                     JONATHAN JAY KIRSCHNER,
                            Appellee.

                              No. 4D17-851

                             [April 25, 2018]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Sherwood Bauer, Jr., Judge; L.T. Case No. 2013 DR 2869.

    Martin L. Haines, III of Brinkley Morgan (formerly of Martin L. Haines,
III, Chartered), Lake Park, for appellant.

  Jonathan Jay Kirschner of Jonathan Jay Kirschner Esq. & Associates,
LLC, Fort Pierce, for appellee.

     ON APPELLEE’S MOTION FOR CLARIFICATION/REHEARING

GERBER, C.J.

   We grant appellee’s motion for clarification/rehearing as to the factual
points raised in paragraphs 2.A. and 2.B., deny the remainder of appellee’s
motion for clarification, withdraw our opinion dated January 24, 2018,
and substitute the following opinion in its place.

    The former wife appeals from the circuit court’s final order partially
denying her motion to enforce the final judgment regarding the parties’
marital settlement agreement (“MSA”) as amended by an addendum. The
former wife raises several arguments, two of which we conclude have
merit: (1) the court erred when it interpreted the MSA addendum as
unambiguously treating the former husband’s sale or refinance of the
parties’ former marital home as a condition precedent to the former
husband’s obligation to pay the former wife’s equitable distribution; and
(2) the court erred when it found that the former husband made diligent
efforts to sell and refinance the home. We agree with these arguments and
reverse for an evidentiary hearing to resolve the ambiguity as to when and
how the former husband, without the sale or refinance of the home, would
become obligated to pay the former wife’s equitable distribution.

  We   present this opinion in the following sections:
  1.   the procedural history;
  2.   the circuit court’s findings; and
  3.   our review of
       a. the circuit court’s error in interpreting the MSA addendum; and
       b. the circuit court’s error in finding the former husband made
          diligent efforts to sell and refinance the marital home.

                           1. Procedural History

  The MSA’s original paragraph four stated, in pertinent part:

           4. SALE OF MARITAL DWELLING: The parties agree to
       sell the marital dwelling above-referenced.        The marital
       dwelling shall first be listed independently, or though [sic] an
       internet based listing service without use of a broker. The
       dwelling shall be listed at a price mutually agreed upon by the
       parties. In the event a sale is unable to be made by the
       method outlined above, the parties agree to list the marital
       dwelling with [a] Florida Registered Real Estate Broker chosen
       by mutual agreement of the parties, at a price to be mutually
       agreed upon by the parties.

           The parties agree to sell the marital dwelling at or near it’s
       [sic] fair market value, and neither party’s agreement to sell
       shall be unreasonably withheld. . . .

   Later, the parties agreed to amend the MSA through an addendum
which stated, in pertinent part:

          Paragraph number 4 of that certain Agreement styled
       “Marital Settlement Agreement[,]” executed by the parties on
       March 7, 2007, relating to “Sale of Marital Dwelling” is and
       shall be modified to the following extent:

          The parties acknowledge and agree that the fair market
       value of the marital dwelling . . . is $725,000.00.

           The parties acknowledge and agree that their [sic] exists a
       first mortgage on said property . . . with an outstanding payoff
       amount of $328,000.00.

                                       2
        The parties likewise agree that the total equity position in
     the property, as it currently exists, is $397,000.00, and both
     the Husband and the Wife are entitled to one-half of that
     amount (50%) to wit: $198,500.00 each.

        Upon execution of this agreement, the Wife agrees to
     execute an instrument conveying all of her right, title and
     interest in the marital dwelling to the Husband. The parties
     agree that the Husband shall, within ten (10) days of the date
     this Addendum is executed by both of the parties with
     appropriate formalities, pay to the Wife the sum of
     $80,000.00.

         The parties acknowledge and agree that the remaining sum
     due to the Wife, to wit: $118,500.00, shall be paid to the Wife,
     at the time of closing. The house will be sold pursuant to the
     provisions of paragraph number 4 of the “Marital Settlement
     Agreement” . . . .

        In the event the marital dwelling is not sold within five (5)
     years of the date this Agreement is executed, the Husband
     agrees to make diligent efforts to refinance the property, in
     order to pay to the Wife, the remaining sum due to her, of
     $118,500.00.

         The Wife shall be entitled to no other monies, irrespective
     of the ultimate sale price of the marital dwelling, and should
     the marital dwelling sell for less than $725,000.00, then the
     Husband shall pay to the Wife, by any means available to him,
     the sum of $118,500.00.

  The circuit court entered a final judgment approving of the MSA as
amended by the addendum.

   Six years later, the former wife filed a motion to enforce the final
judgment regarding the MSA as amended. Among other things, the former
wife asked the circuit court to:

     [R]equire the Former Husband to pay to the Former Wife the
     sum of One Hundred Eighteen Thousand Five Hundred
     Dollars ($118,500), together with interest, immediately. In the
     event the Court deems it necessary for the Former Husband
     to first sell or refinance the Former Marital Home in order to

                                    3
      pay to the Former Wife the sum of One Hundred Eighteen
      Thousand Five Hundred Dollars ($118,500), the Court should
      Order same to be done immediately.

    At the evidentiary hearing on the former wife’s motion, the parties
agreed that pursuant to the MSA addendum’s terms, the former wife
quitclaimed her interest in the former marital home to the former
husband, the former husband paid $80,000 to the former wife, and the
former husband still owed $118,500 to the wife. The remainder of the
hearing focused on the former husband’s unsuccessful efforts to sell or
refinance the former marital home.

   The former husband testified that, at the time of the evidentiary
hearing, the former marital home had been listed on the real estate market
for several months at $725,000, which was above its then fair market
value. Before that listing, the home had not been listed for approximately
seven years. Seven years earlier, the former husband listed the home for
$979,000, which also was above its fair market value. The parties
stipulated that the former husband’s realtor showed the home several
times when it was first listed, but the home did not receive any offers.

   The former husband testified that he did not list the home during that
seven year period because the home was “underwater,” had depreciated in
value by 65%, and listing the home would have been futile. The former
husband admitted that during this time, he was not motivated to sell the
home to satisfy his equitable distribution obligation to the former wife,
because, as documented in a letter he sent to the former wife’s counsel,
she would “attain her desired windfall, leaving nothing remaining for me.”

   The former husband testified that, after he was unable to sell the home,
he attempted four times to refinance. His first attempt was denied due to
insufficient collateral, as the home’s fair market value was listed at
$367,951. His later attempts were denied because he was not current on
his mortgage payments. He attempted to refinance even though he
thought he would not qualify. However, his most recent attempt was only
four years before the evidentiary hearing. He said that he would make
another attempt to refinance and expected to be successful.

    The former husband felt he had no obligation to make the $118,500
equitable distribution payment to the former wife until he sold or
refinanced the home. According to the former husband, the MSA
addendum provided that only if he sold or refinanced the home and was
unable from those funds to make the $118,500 equitable distribution
payment to the former wife would he be required to find an alternative

                                    4
payment method. The former husband agreed that if he sold the home for
an amount between $585,000 and $600,000, he would be able to pay off
the home’s two mortgages and make the $118,500 equitable distribution
payment to the former wife.

   Towards the end of the former husband’s testimony, the following
discussion occurred between the court and the former husband:

         THE COURT: [A]s I read [the MSA addendum], you know,
      the house part, “It is acknowledged and agreed the remaining
      sum due the Wife, the 118,[500] shall be paid to the Wife at
      the time of closing. In the event it’s not sold within five years,
      the Husband agrees to make diligent efforts to refinance the
      property in order to pay the Wife.” It’s not in order that both
      of you walk away with some money. It’s in order to pay the
      Wife the remaining sum due to her of 118,5[00]. And it even
      has the condition that should the marital dwelling sell for less
      than 725,[000] the Husband shall pay the Wife by any means
      available to him the sum of 118,5[00]. So you guys actually
      contemplated the house not selling for enough, not selling at
      a high enough rate or sale price to pay her the 118[,500] that
      you would otherwise get money from whatever means
      possible.

         [FORMER HUSBAND]: I was trying to be fair in the
      agreement and guarantee her that money.

         THE COURT: So you[’re] not selling the home at a rate
      lower than what would pay her off and leave you some
      additional funds would mean that this is an endless contract,
      that you could just keep waiting and waiting and waiting and
      waiting, right?

         [FORMER HUSBAND]: Judge, I’ve listed it at 725[,000].
      That doesn’t mean that I wouldn’t sell it for less. Putting it
      above market is for the purpose of getting lucky.

   Following the testimony, the former wife argued that the MSA
addendum did not contain a condition precedent that the former husband
be able to sell or refinance the home before being required to make the
$118,500 equitable distribution payment to the former wife. According to
the former wife, if the court read such a condition precedent into the MSA
addendum, then she never would be paid the remaining $118,500 if the
former husband never sold or refinanced the home.

                                      5
    In response, the former husband argued that the former wife’s request
for him to make the $118,500 equitable distribution payment without the
sale or refinance of the home would require the court to impermissibly
rewrite the MSA addendum. According to the former husband, the MSA
addendum’s plain language created a condition precedent that he would
not be required to make the $118,500 equitable distribution payment to
the former wife until he sold or refinanced the home. The former husband
argued that the former wife’s only remedy was to have the court reduce
the debt to a money judgment.

                    2. The Circuit Court’s Findings

   After the evidentiary hearing, the circuit court entered a final judgment
stating, in pertinent part:

         The Former Wife seeks a ruling that the Court determine
      that neither the sale nor the refinancing of the former marital
      residence are conditions precedent to payment by the Former
      Husband to the Former Wife of One Hundred Eighteen
      Thousand Five Hundred Dollars ($118,500). However, to do
      so would require a “rewriting” of the terms of the Agreement
      entered into by the parties. Although the agreement does not
      specifically state that the sale or refinancing is a condition
      precedent to the payment, a review of the entire agreement
      and the clear intent of the parties that the payment would be
      made after the sale of the home or refinancing of the home
      results in the determination that the condition exists. Reilly
      v. Reilly, 94 So. 3d 693 (4th DCA 2012). Noteworthy also is
      that the agreement also does not require the payment of the
      $118,500.00 at any specific time, or within any time period,
      other than after sale or refinancing. It does require that “[t]he
      house will be sold pursuant to the provisions of paragraph
      number 4 of the ‘Marital Settlement Agreement’ executed by
      the parties on March 7, 2007” and if the home does not sell
      within five (5) years of the agreement, then “the Husband
      agrees to make diligent efforts to refinance the property, in
      order to pay the Wife, the remaining sum due to her, of
      $118,500.00.”      The unrefuted testimony of the Former
      Husband was that the marital home was the primary marital
      asset and its division was the major part of the equitable
      distribution agreement. It was to be used, either upon sale or
      a refinancing “in order to pay the Wife, the remaining sum due
      to her, of $118,500.00.” Only if the marital dwelling should

                                     6
      “sell for less than $725,000.00, then the Husband shall pay
      to the Wife, by any means available to him, the sum of
      $118,500.00.” It is clear in the agreement that the home’s
      equity was to be the primary source for the payment of the
      money to the Former Wife.

      ....

          A marital settlement agreement is interpreted like any
      other contract. Absent any evidence that the parties intended
      to endow a special meaning in the terms used in the
      agreement, the unambiguous language is to be given a
      realistic interpretation based upon the plain, everyday
      meaning conveyed by the words. See Feliciano v. Munoz-
      Feliciano, 190 So. 3d 232 ([Fla.] 4th DCA 2016). Also, quoting
      Feliciano, Id. at 234, “[h]ad the parties intended this to be a
      general debt obligation, such a contract would have been
      simple to craft, as they simply could have omitted the ‘from
      the other parties share of the proceeds’ clause. Given that the
      parties chose to include this language in the contract it must
      be given some meaning. Here, that meaning is clear.” As
      noted earlier in this matter, the parties chose to use the words
      “. . . shall be paid to the Wife at the time of closing . . .” and
      “. . . diligent efforts to refinance the property, in order to pay
      the Wife, the remaining sum due to her, of $118,500.00.”
      Although the Former Wife argues that the agreement should
      be interpreted as requiring a general debt obligation, which
      could be viewed as being a reasonable requirement in order to
      finalize the equitable distribution of the asset, the Court
      cannot modify the agreement for a specific result. The Former
      Wife was to be paid after closing on the home or upon the
      refinancing of the home.

(emphasis omitted).

   The court went on to find that although the MSA’s original paragraph
four stated that the home would be listed “at a price mutually agreed upon
by the parties,” no evidence was presented at the evidentiary hearing that
the parties ever discussed or agreed upon a listing price. Thus, the court
held the former husband was not required to list the home at any
particular price.     Moreover, the court found the home “almost
continuously remained on the market since [2008].”



                                      7
    As for the MSA addendum’s provision that if the home did not sell
within five years, the former husband was required to make diligent efforts
to refinance the home to satisfy the monetary obligation to the former wife,
the court found:

          Although the term “diligent” is not defined in the
      agreement, a common definition would include that the
      Former Husband be attentive and persistent in attempting to
      accomplish the act of refinancing the home. The evidence
      includes that the Former Husband attempted refinancing in
      2013 and 2014, with a total of 4 attempts. In 2014 the Former
      Husband fell behind on the making of the mortgage payments,
      then was able to get caught up, but fell behind again leading
      to the foreclosure action . . . . As the dismissal of the
      foreclosure action occurred in November, 2016, the Former
      Husband testified that he is unable to refinance after so
      recently working out a remedial modification of his original
      loan to stop the foreclosure action. The Husband has the
      continuing obligation to diligently make efforts to refinance
      the home in order to satisfy the payment obligation to the
      Former Wife. While the Court finds herein that the Former
      Husband has, thus far, been diligent in that regard and that
      the recent foreclosure action has caused a further delay in the
      fulfillment of this obligation, the obligation nevertheless exists
      and the Former Husband must be diligent in attempting to
      refinance the home[.]

   Based on the foregoing findings, the circuit court denied the former
wife’s motion to require the former husband to make the $118,500
equitable distribution payment to the former wife.

   This appeal followed. The former wife argues the circuit court erred
when it: (1) interpreted the MSA addendum as unambiguously treating
the former husband’s sale or refinance of the parties’ former marital home
as a condition precedent to the former husband’s obligation to pay the
former wife’s equitable distribution; and (2) found that the former husband
made diligent efforts to sell and refinance the home. We review each
argument in turn.

                              3. Our Review

a. The circuit court erred in interpreting the MSA addendum.



                                      8
    “The interpretation of the wording and meaning of the marital
settlement agreement, as incorporated into the final judgment, is subject
to de novo review. A marital settlement is interpreted like any other
contract.” Feliciano v. Munoz-Feliciano, 190 So. 3d 232, 233–34 (Fla. 4th
DCA 2016) (internal citations omitted). “A settlement agreement should
not be disturbed unless found to be ambiguous or in need of clarification,
modification, or interpretation.” Ballantyne v. Ballantyne, 666 So. 2d 957,
958 (Fla. 1st DCA 1996). “As a general rule, conditions precedent are not
favored, and the courts will not construe provisions to be such, unless
required to do so by plain, unambiguous language or by necessary
implication.” Reilly v. Reilly, 94 So. 3d 693, 697 (Fla. 4th DCA 2012)
(citation omitted).

   We agree with the former wife that the court erred when it interpreted
the MSA addendum as treating the former husband’s sale or refinance of
the parties’ former marital home as a condition precedent to the former
husband’s obligation to pay the former wife’s equitable distribution. We
conclude the MSA addendum was ambiguous on this issue.

   Reilly v. Reilly, 94 So. 3d 693 (Fla. 4th DCA 2012), is instructive. In
Reilly, per the MSA’s equitable distribution scheme, the parties agreed, in
pertinent part, to the following: “The Husband agrees to pay the Wife
$15,177 from his share of the closing proceeds [from the sale of the former
marital home] as and for equitable distribution.” Id. at 696. Later, the
marital home sold, but the sale did not produce profit. Id. The husband
argued that the MSA’s language created a condition precedent: if he
received no proceeds from the home’s sale, he was not required to pay the
wife $15,177 as referenced in the MSA. Id. We rejected the husband’s
argument, reasoning:

         In the equitable distribution provision . . . there are no
      phrases of conditional performance. The former husband
      agreed to pay the former wife $15,177 as and for equitable
      distribution. Payment from the closing proceeds is not a
      condition precedent, only a source for the payment. The MSA
      was entered into more than a year before the parties sold the
      marital home so the parties did not know how much the
      proceeds of the sale would be. The MSA is silent as to what
      would happen if the proceeds were not enough but the
      $15,177 is specifically labeled as and for equitable
      distribution and is owed to the former wife. The trial court did
      not err in ordering the former husband to pay the former wife
      $15,177 as and for equitable distribution.


                                     9
Id. at 697.

    Here, as in Reilly, the MSA addendum contains no phrases of
conditional performance. In essence, the former wife gave up her fifty
percent interest in the former marital home in exchange for the husband’s
promise to pay her $118,500.00 in equitable distribution. Payment from
sale proceeds or from a refinance is not a condition precedent, but only a
source for the payment. The $118,500 is specifically labeled as being “due
to the Wife.” The MSA addendum’s final sentence, which required the
former husband to find an alternate payment method should the sale or
refinancing result in insufficient funds, supports our interpretation.

    However, this case is slightly distinguishable from Reilly, because in
Reilly, the sale which the MSA contemplated in fact occurred (albeit for
less money than the former husband anticipated), whereas here, the sale
or refinance which the MSA addendum contemplated has not occurred.
The MSA addendum is silent as to what would happen if the sale or
refinance did not occur. In other words, without a sale or refinance, when
and how would the former husband become obligated to make the
$118,500 equitable distribution payment to the wife?

    Because the MSA addendum does not answer that question, the MSA
addendum is ambiguous. A contract contains a latent ambiguity where
the “contract fails to specify the rights or duties of the parties in certain
situations and extrinsic evidence is necessary for interpretation or a choice
between two possible meanings.” Schwartz v. Greico, 901 So. 2d 297, 299
(Fla. 2d DCA 2005) (citation omitted). “[T]he latent ambiguity, which was
not apparent at the time the contract was created, is revealed by the
‘certain situation’ that occurs during the performance of the contract.” Id.
at 300.

    Here, that “certain situation” occurred when the former husband was
unable to sell or refinance the home, and the MSA did not define when and
how the former husband, without the sale or refinance, would become
obligated to make the $118,500 equitable distribution payment to the wife.
Thus, the circuit court was required to receive extrinsic evidence to
determine the parties’ intent when they entered into the contract as to how
to handle that “certain situation.” See White v. White, 141 So. 3d 645, 646
(Fla. 4th DCA 2014) (when an MSA is ambiguous or unclear, the circuit
court “may consider extrinsic evidence as well as the parties’ interpretation
of the contract to explain or clarify the language.”) (citation omitted).

   Crespo v. Crespo, 28 So. 3d 125 (Fla. 4th DCA 2010), also is instructive.
In Crespo, the parties’ MSA stated that the husband owed the wife

                                     10
$145,000 as equitable distribution, and “in recognition of and exchange
for the funds Wife shall receive for equitable distribution” the wife would
give up any rights to a building which would solely belong to the husband.
Id. at 127. The MSA did not specify a date of payment. Id. The wife later
moved to enforce the MSA, arguing that payment was due immediately.
Id. The husband argued the parties understood when the MSA was signed
that the building’s sale was the only possible source for payment. Id. The
circuit court found the due date’s absence in the MSA to be an ambiguity
necessitating the consideration of extrinsic evidence. Id.

    We affirmed, concluding that “[t]he MSA failed to specify a time for
payment and was thus ambiguous as to the intent of the parties in that
regard.” Id. at 128. Thus, the circuit court properly decided to consider
extrinsic evidence as to the parties’ intent. Id. We also pointed out that
“[t]he factual resolution of such an ambiguity as to the due date of the
payment does not modify their agreement; it merely clarifies the inherent
ambiguity therein.” Id.

   Here, like in Crespo, the MSA addendum failed to specify when and how
the former husband, without the sale or refinance of the home, would
become obligated to make the $118,500 equitable distribution payment to
the wife. Thus, the circuit court should have considered extrinsic evidence
as to the parties’ intent. The factual resolution of such an ambiguity would
not, as the circuit court here suggested, impermissibly modify the parties’
agreement. Instead, such a ruling merely would clarify the ambiguity.

b. The circuit court’s error in finding the former husband made
   diligent efforts to sell and refinance the marital home.

   “We review the trial court’s factual findings to determine whether they
were supported by competent and substantial evidence.” Segarra v.
Segarra, 947 So. 2d 543, 545 (Fla. 3d DCA 2006).

    We agree with the former wife that competent, substantial evidence did
not support the circuit court’s findings regarding the former husband’s
efforts to sell and refinance the home.

   The court found that the former husband had no obligation to list the
former marital home at any particular price because the evidence showed
the parties never discussed a sale price. However, Paragraph 4 of the MSA
provided, in pertinent part: “The parties agree to sell the marital dwelling
at or near it’s [sic] fair market value.” The MSA addendum provided, in
pertinent part: “The parties acknowledge and agree that the fair market
value of the marital dwelling . . . is $725,000.00.”

                                    11
    The circuit court also found that the former husband made diligent
efforts to sell the home, and that the former marital home “almost
continuously remained on the market since [2008].” However, the
husband admitted at the hearing that he did not list the home for a seven
year period, and the record reflects that the husband never attempted to
list the former marital home at its actual fair market value. The husband
initially listed the home for sale at $979,000, well above the parties’ agreed
fair market value of $725,000. By the time the former husband listed the
home at the parties’ agreed fair market value of $725,000, this price was
above the actual fair market value. Based upon an unsolicited realtor’s
appraisal and the former husband’s own application for loan modification,
the actual fair market value could have been anywhere between $409,000
and $499,870.

   The circuit court should have concluded from these facts that the
former marital home may not have sold because the former husband’s
asking price was consistently too high. The court also should have
concluded that the former husband listed the home at an unrealistic price.
The former husband interpreted the MSA’s addendum to mean that if the
home never sold and he was not able to refinance, then he would never be
obligated to pay the equitable distribution to his former wife. And the
former husband also openly admitted that he had no motivation to sell the
home merely to satisfy his financial obligation to the former wife.

    The circuit court’s finding that the husband made four diligent efforts
to refinance is also problematic. The former husband testified he thought
he would not qualify for refinancing for a variety of reasons, including his
impending foreclosure, and he attempted to refinance only because he felt
obligated to do so.

    Despite our conclusion that the circuit court erred in its findings
regarding the former husband’s efforts to sell and refinance the home, the
result of the court’s error remains the same as the result arising from the
court’s error in interpreting the MSA addendum. Because the MSA
addendum failed to specify the outcome if the former husband did not sell
or refinance, for whatever reason, the circuit court should have considered
extrinsic evidence as to the parties’ intent regarding how to handle that
“certain situation.”

                                Conclusion

   Based on the foregoing, we reverse the circuit court’s final order
partially denying the former wife’s motion to enforce the final judgment

                                     12
regarding the MSA as amended by the addendum. We remand for an
evidentiary hearing to resolve the ambiguity as to when and how the
former husband, without the sale or refinance, would become obligated to
make the $118,500 equitable distribution payment to the wife. On all
other arguments which the former wife raises, we affirm without further
comment.

   Affirmed in part, reversed in part, and remanded.

CIKLIN and LEVINE, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




                                   13
