               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT


MARK P. FAMIGLIO,                           )
                                            )
             Appellant,                     )
                                            )
v.                                          )          Case No. 2D18-467
                                            )
JENNIE LASCELLE FAMIGLIO,                   )
                                            )
             Appellee.                      )
                                            )

Opinion filed May 10, 2019.

Appeal from the Circuit Court for DeSoto
County; Kimberly Carlton Bonner, Judge.

Douglas A. Wallace and Steven L.
Brannock of Brannock & Humphries,
Tampa, for Appellant.

Charles J. Bartlett and Mark C. Dungan of
Icard, Merrill, Cullis, Timm, Furen &
Ginsburg, P.A., Sarasota, for Appellee.


LUCAS, Judge.

             The tiniest words can have the greatest consequence. In this appeal of a

judgment interpreting a prenuptial agreement, the word "a," the smallest of words in the

English language, could mean the difference of a million and a half dollars.
                                              I.

               Weeks before their marriage in 2006, Mark Famiglio (the Husband) and

Jennie Lascelle Famiglio (the Wife) entered into a Prenuptial Agreement. Among other

items, the Prenuptial Agreement addressed the extent of lump sum alimony the Wife

would receive in the event the parties divorced. Pertinent here, the agreement provided

as follows1:

               5.1. In the event the marriage of the parties is dissolved by
               a court of competent jurisdiction, then the parties shall have
               no obligation to make payments of any kind or for any
               purpose to or on behalf of the other, except as specifically
               set forth in Paragraph 5.2 and 5.3.

               5.3. JENNIE's Benefits and Obligations. If the marriage
               ends by dissolution of marriage or an action for dissolution of
               marriage is pending at the time of MARK's death, then
               JENNIE shall receive the additional benefits and obligations
               described in 5.3.a. through d.

                      a. MARK shall pay to JENNIE, within ninety (90) days
                      of the date either party files a Petition for Dissolution
                      of Marriage the amount listed below next to the
                      number of full years they have been married at the
                      time a Petition for Dissolution of Marriage is filed.

(Emphasis added.)

               Section 5.3.a. included two columns reflecting a gradually escalating

schedule of money for each full year of marriage. Thus, for example, if a petition for

dissolution of marriage were filed after seven full years of marriage, the Wife would




               1Our record does not include the Prenuptial Agreement due to the
inadvertent omission of its filing by the trial court. However, the order on appeal recites
the applicable provisions of the agreement, which the parties agree are accurate and
sufficient to enable our review of the discrete interpretive issue in this appeal.

                                            -2-
receive $2.7 million; if a petition were filed after ten full years of marriage, the Wife

would receive $4.2 million.

              As it happened, two different petitions were filed in two different years.

              On March 25, 2013, the Wife filed a petition for dissolution of marriage in

the Sarasota County Circuit Court. At that time, the parties would have been married

for seven full years under the Prenuptial Agreement. That petition was never served,

however, and on September 13, 2013, the Wife voluntarily dismissed the petition

without prejudice.

              On May 26, 2016, the Wife filed a second petition for dissolution of

marriage in the Sarasota County Circuit Court. By this time, the parties had been

married ten full years for purposes of section 5.3 of the Prenuptial Agreement. The

litigation pertaining to this second petition remains pending.

              The Husband then filed the underlying action for declaratory relief, seeking

the court's construction of various provisions in the parties' Prenuptial Agreement.2

Relevant to this appeal, the Husband maintained that the Wife's filing of the first petition

in 2013 became the operative year of measurement for purposes of section 5.3, so that

she would be entitled to a payment of $2.7 million. The Wife argued that her second

petition, the one that would result in an actual dissolution of the parties' marriage,

controlled the operation of section 5.3. According to the Wife, she should receive $4.2

million under this provision of the Prenuptial Agreement.




              2Thisaction was brought separately in the DeSoto County Circuit Court
pursuant to separate provisions in the Prenuptial Agreement.

                                             -3-
              The Husband's declaratory action proceeded to trial on December 6,

2017. No witnesses testified; no evidence other than the Prenuptial Agreement was

proffered. Both sides, Husband and Wife, believed the agreement was clear and

unambiguous and could be construed in their favor.

              On January 9, 2018, the trial court entered a Final Order of Declaratory

Judgment, the judgment now on appeal. Regarding the measurement of years, the trial

court observed that section 5.3's title and conditions speak to the parties' rights and

obligations arising from a dissolution of marriage. Thus,

              [i]t follows logically and reasonably that the obligations under
              5.2 and 5.3 arise only after an actual dissolution of marriage
              and do not impose post filing obligations. . . . Furthermore,
              the entirety of section 5.3 by its own terms applies, "If the
              marriage ends by dissolution of marriage . . . ." The
              Agreement does not provide any rights or obligations
              stemming from the mere filing of a Petition, unless such a
              Petition is pending at the time of [H]usband's death as stated
              in section 5.3.

                      The Court is unpersuaded that some deliberate
              choice of the article "a" instead of "the" in 5.3 dictates the
              result in this action. Although it is true that articles have
              specific meaning, this case presents a question of
              contractual interpretation, which requires the court to
              examine the disputed provision as part of the whole
              agreement and not in isolation. When read as a whole, the
              provision in question can only be consistently and logically
              interpreted to apply to the parties' obligations "In the event
              the marriage of the parties is dissolved. . . ." Any other
              conclusion would be inconsistent with the express intent and
              language of the Agreement. It would also lead to multiple
              absurd results that undermine the stated purpose of the
              Agreement.

The "multiple absurd results" the court alluded to were various hypotheticals the parties

proposed: under the Husband's proposed interpretation, he could have simply filed, but

never served, a dissolution petition in year one of the marriage to permanently limit his



                                            -4-
financial obligations no matter how long the marriage actually lasted (a seemingly

inequitable result); but under the Wife's proposed interpretation, she could have filed

and dismissed a petition every year in order to require a lump sum payment from the

Husband within 90 days of each filing, regardless of the fact that the marriage is never

dissolved (also a seemingly inequitable result). Ultimately, the trial court concluded that

"the timing of the payment under section 5.3 is triggered by a dissolution of marriage,

[t]he schedule of payments is determined by the date a Petition was filed, when that

Petition results in a dissolution of marriage." Accordingly, the court held, the Wife's

2016 petition would be the controlling petition for the purpose of determining her lump

sum alimony under section 5.3.

              In this appeal, the Husband asks us to reverse that part of the trial court's

declaration that construed his payment obligation under section 5.3 as being tied to the

date a petition for dissolution of marriage was filed "when that Petition results in a

dissolution of marriage." He believes "a" means "any," and in this case "any" should

mean the first petition the Wife filed in 2013.

                                               II.

              A prenuptial agreement is governed by the law of contracts; as such, we

review the trial court's interpretation of the parties' Prenuptial Agreement de novo. See

Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. 2015). "Because the decision

is a matter of law, this court is on equal footing with the trial court's interpretation of the

contract." Gemini Ventures of Tampa, Inc. v. Hamilton Eng'g & Surveying, Inc., 784 So.

2d 1179, 1180 (Fla. 2d DCA 2001); see also Jarrard v. Jarrard, 157 So. 3d 332, 337




                                              -5-
(Fla. 2d DCA 2015) (observing that for pure issues of law, "the trial court has no greater

insight than the appellate court").

              Throughout the proceedings below, both parties steadfastly maintained

that section 5.3 is clear and unambiguous on the discrete question before us. The trial

court's judgment did not expressly declare the provision to be unambiguous, but neither

did it find to the contrary.3 From our review of the trial court's analysis, it appears to us

that the court deemed section 5.3 to be unambiguous on the question of which

dissolution petition should be utilized to measure the Wife's alimony.

              Now an argument could have been made that there was an ambiguity

here. Section 5.3 seems to contemplate only one petition for dissolution of marriage

being filed, and it does not at all address the situation presented here where more than

one petition has been filed. One could argue the provision in this case might pose a

latent ambiguity. Cf. Morrison v. Morrison, 247 So. 3d 604, 607 (Fla. 2d DCA 2018) ("A

latent ambiguity arises when the language in a contract is clear and intelligible, but

some extrinsic fact or extraneous evidence creates a need for interpretation or a choice




              3We    pause to offer a suggestion to trial courts confronted with competing
interpretations of a written agreement. In such cases, the court's ruling should include a
preliminary determination of whether the language at issue is either clear or ambiguous.
Cf. Strama v. Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001) ("The
initial determination of whether the contract term is ambiguous is a question of law for
the court, and if the facts of the case are not in dispute, the court will also be able to
resolve the ambiguity as a matter of law." (emphasis added)); Duquesne Light Co. v.
Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir. 1995) (applying Pennsylvania law
and noting, "[t]herefore, as a preliminary matter, courts must 'determin[e] as a matter of
law which category written contract terms fall into—clear or ambiguous.' " (quoting
Allegheny Int'l, Inc. v. Allegheny Ludlum Steel Corp., 40 F.3d 1416, 1424 (3d Cir.
1994))). Besides the obvious legal ramifications, this threshold issue in contract
disputes—whether a term is ambiguous or not—can impact the advocacy and approach
the litigants will choose to undertake in presenting their cases.

                                             -6-
between two or more possible meanings." (quoting GE Fanuc Intelligent Platforms

Embedded v. Brijot Imaging Sys., Inc., 51 So. 3d 1243, 1245 (Fla. 5th DCA 2011))).

Had the trial court concluded there was a latent ambiguity, the parties could have

submitted parol evidence to assist the court's interpretation of the provision's competing

meanings. Id.; see also Elias v. Elias, 152 So. 3d 749, 752 (Fla. 4th DCA 2014); Ace

Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So. 2d 544, 547 (Fla. 1st DCA 1973)

("Where, under a latent ambiguity which is presented the intent may have been for one

of two things, it is permissible, and is the duty of the court to receive and consider

extrinsic evidence bearing thereon.").

              We are, however, constrained by this record to proceed along the same

course the trial court undertook. We can only work with what has been provided, and

what has been provided here (as it was below), comprises of the agreement itself and

the very capable arguments of counsel. With that, we will turn to our review of the trial

court's interpretation of the language in section 5.3.a.

              It is, of course, well settled that "[w]hen interpreting a contract, the court

must first examine the plain language of the contract for evidence of the parties' intent."

Heiny v. Heiny, 113 So. 3d 897, 900 (Fla. 2d DCA 2013) (quoting Murley v.

Wiedamann, 25 So. 3d 27, 29 (Fla. 2d DCA 2009)). Provisions in a contract should be

"construed in the context of the entire agreement" and read "in a way that gives effect to

all of the contract's provisions." Retreat at Port of Islands, LLC v. Port of Islands Resort

Hotel Condo. Ass'n, 181 So. 3d 531, 533 (Fla. 2d DCA 2015). Courts should not

employ an interpretation of a contractual provision that would lead to an absurd result.

See Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 966 (11th Cir.




                                             -7-
2014) ("Under Florida law, 'if one interpretation looking to the other provisions of the

contract and to its general object and scope would lead to an absurd conclusion, such

interpretation must be abandoned, and that adopted which will be more consistent with

reason and probability.' " (quoting Inter-Ocean Cas. Co. v. Hunt, 189 So. 240, 243 (Fla.

1939))). On the other hand, "[i]t is never the role of a trial court to rewrite a contract to

make it more reasonable for one of the parties," Barakat v. Broward Cty. Hous. Auth.,

771 So. 2d 1193, 1195 (Fla. 4th DCA 2000), or, in the guise of interpretation, relieve a

contracting party from the consequences of a bad bargain, Prestige Valet, Inc. v.

Mendel, 14 So. 3d 282, 283 (Fla. 2d DCA 2009).

              Much of the trial court's interpretation rested upon its assessment that the

indefinite article "a" in section 5.3's term, "at the time a Petition for Dissolution of

Marriage is filed," holds no real importance. We respectfully disagree. The use of this

indefinite article is the heart of the problem here.

              The purpose of the indefinite article is to indicate a noun that is, in some

way, variable, unidentified, or unspecified. See Retreat at Port of Islands, 181 So. 3d at

533 ("Linguistically, 'a' refers to 'any or each' of a type when used with a subsequent

restrictive modifier."). The word "a" is "a function word before singular nouns when the

referent is unspecified." Merriam-Webster's Collegiate Dictionary 1 (11th ed. 2003). As

used in section 5.3.a., the indefinite article "a" indicates the generic, possible

occurrence of an unspecified petition for dissolution of marriage being filed by one of the

parties. But the overarching purpose of section 5.3.a. was to calculate an alimony

payment based upon a petition that has been filed on a singular, particular date. By

utilizing an indefinite article here, the filing date measurement of section 5.3.a. leaves




                                              -8-
open the possibility that more than one petition for dissolution of marriage could be filed,

but does not inform the parties which petition's filing should be the operative date for

measuring if that were to occur. So, given this language, which date should be used if

more than one petition has been filed?

               The trial court essentially side-stepped the problem by tacking words onto

the provision. According to the trial court's construction, the yearly measurement in

section 5.3.a. is made by referring to the date a dissolution petition is filed "when that

Petition results in a dissolution of marriage." Unfortunately, as clarifying as it would

seem, that is a term of the trial court's invention. See Intervest Constr. of Jax, Inc. v.

Gen. Fid. Ins. Co., 133 So. 3d 494, 497 (Fla. 2014) ("Courts may not 'rewrite contracts,

add meaning that is not present, or otherwise reach results contrary to the intentions of

the parties.' " (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So. 2d 528,

532 (Fla. 2005))); 19650 NE 18th Ave. LLC v. Presidential Estates Homeowners Ass'n,

103 So. 3d 191, 194 (Fla. 3d DCA 2012) (reversing trial court's interpretation of a

restrictive covenant because the court "effectively added a forfeiture provision to

confiscate the development rights when the requirements of the covenant were not met.

A court may not rewrite a contract to add language the parties did not contemplate at

the time of execution" (citing BMW of N. Am., Inc. v. Krathen, 471 So. 2d 585, 587 (Fla.

4th DCA 1985))); cf. Smith v. Bankers Life Ass'n of Des Moines, Iowa, 123 Ill. App. 392,

395-96 (Ill. App. Ct. 1905) (holding that insurance policy application's question, "How

long since you consulted a physician?" was ambiguous because "it might mean, how

long since you first consulted a physician, or how long since you last did so" and

reversing trial court's instruction as it "in effect arbitrarily inserted the word 'last' ").




                                               -9-
              Nor does the larger context the trial court discerned for sections 5.1, 5.2,

and 5.3—the dissolution of the parties' marriage—necessarily lead to the conclusion

that the discrete measurement in section 5.3.a. could only be tied to a petition that

results in a dissolution of marriage. These sections generally address the context of a

dissolution of marriage, to be sure, but that is not because of any unique facet of these

sections' inter-relatedness with one another. It is because they are part of a prenuptial

agreement. The point of this whole agreement was to address and ascribe the parties'

rights and obligations in the event their marriage is dissolved. Thus, section 5.1's

prefatory "In the event the marriage of the parties is dissolved by a court of competent

jurisdiction," and 5.3's "If the marriage ends by dissolution" simply acknowledge that the

Husband's responsibility to make the lump sum alimony payment—of whatever

amount—will be contingent upon the parties' marriage being dissolved. It does not

follow that section 5.3.a's "a petition" somehow becomes "the petition that happens to

result in a final judgment of dissolution of marriage" by virtue of context alone, especially

where, as here, an alternative interpretation could just as reasonably be supported by

the operative language.4



              4The    Wife also argues that the context of these sections illustrates an
intent that the lump sum alimony payment should more closely reflect the total number
of years the parties were actually married by the time their marriage is dissolved.
Perhaps. Or perhaps, as the Husband counters, the underlying intent could have been
that initiating "a petition" for dissolution of marriage was deemed to be so momentous
that the parties agreed to tie an attendant consequence to its very filing. Both intentions
are equally plausible and, on this record, equally unknowable.
                It should also be noted that the timing of the required payment in section
5.3—90 days from the date "a petition" is filed—could be read to imply that the
obligation becomes operative regardless of whether the petition results in the marriage's
dissolution. It seems difficult to fully reconcile this part of the provision with either of the
interpretations espoused by the parties.


                                             - 10 -
              Finally, the trial court's invocation of the absurdity canon of contractual

construction is unavailing here. Tellingly, no one has suggested that the actual

application of either of the competing interpretations for section 5.3.a. would be absurd

in this case. Under either reading the Wife will receive a significant lump sum alimony

payment. The trial court's judgment recounted hypothetical scenarios that could be

deemed absurd if the court were to apply the parties' competing interpretations under

those hypothetical facts. But that is not how this canon of contract construction is really

supposed to work. Cf. Morrison, 247 So. 3d at 608 ("[A]n interpretation that leads to an

absurd result . . . should be avoided." (emphasis added)); Am. Med. Int'l, Inc. v.

Scheller, 462 So. 2d 1, 7 (Fla. 4th DCA 1984) ("Indeed, fanciful, inconsistent, and

absurd interpretations of plain language are always possible."). The trial court's

analysis of this point appears to have conflated an interpretive reductio ad absurdum

argument about the provision with a finding that the provision actually yielded an absurd

result. Whether one construes section 5.3.a. as measuring the Wife's lump sum

alimony from the filing of her 2013 petition or her 2016 petition, the result will not be

absurd.

              Neither the context of section 5.3.a. nor the canon of absurdity casts any

light on the quandary. We can only rely on the natural meaning of the phrase: "at the

time a Petition for Dissolution of Marriage is filed." See In re Guardianship of Sapp, 868

So. 2d 687, 691 (Fla. 2d DCA 2004) ("Words and phrases should be given their natural

meaning or a meaning most commonly understood in relation to the subject matter and

circumstances."); J.N. Laliotis Eng'g Constr., Inc. v. Mastor, 558 So. 2d 67, 68 (Fla. 2d

DCA 1990) ("Words used in an agreement should be given 'a natural meaning or the




                                            - 11 -
meaning most commonly understood in relation to the subject matter and

circumstances.' " (quoting Granados Quinones v. Swiss Bank Corp., 509 So. 2d 273,

275 (Fla. 1987))). As we observed at the outset, it seems clear that the intent of this

discrete provision is to link the lump sum alimony measurement to a singular

occurrence—when a petition is filed with a court. Cf. The American Heritage Dictionary

of the English Language 8057 (3d ed. 2000) ("when . . . conj. 1. At the time that").

In common parlance, predicating a condition on "when something occurs" or "at the time

something occurs," is normally understood to mean the first time that the something

occurs. This is so because conditional statements such as these are made with a view

towards the future, as a way of indicating that a consequent condition will arise from a

future condition's occurrence. And since the future cannot be known (except in

hindsight), we would ordinarily read a provision like section 5.3.a. to align with the way

we experience the passing of temporal events; that is, we would consider the future

condition's first occurrence to be the operative one, even if it is a condition that might be

capable of repetition. Thus, a golf course's rule, "when a thunderstorm approaches, you

must end your golf game," would be universally understood to mean the first time a

thunderstorm approaches. Certainly, more than one storm might come and go

throughout the day, but the rule would make little sense if it were construed to mean

whichever storm the golfer chooses, so long as the game is ended.

              That is how section 5.3.a. must be understood. Its natural meaning and

frame of reference is to tie, prospectively, a variable sum of alimony on the singular

occurrence of the filing of "a petition" for dissolution of marriage, which, in its most usual




                                            - 12 -
sense, would mean the first time such a petition is filed. In this case, that occurred on

March 25, 2013.

                                             III.

              Accordingly, we affirm the judgment below in all respects except as to the

measurement of the Wife's lump sum alimony under section 5.3.a. We remand this

case for the court to enter an amended judgment utilizing the 2013 petition as the year

of measurement for purposes of this section of the parties' prenuptial agreement.

              Affirmed in part; reversed in part; remanded with instructions.


VILLANTI, J., Concurs.
ATKINSON, J., Concurs with opinion.



ATKINSON, Judge, Concurring.

              I fully concur with the majority opinion except as otherwise explained

herein. I write separately to acknowledge that there is a latent ambiguity in the

Prenuptial Agreement, but not the one identified by the majority. See Maj. Op. supra

Section II. The ambiguity is as to when the payment is to be made, and it is irrelevant to

the separate question at issue in this case—the amount of the payment, which is

governed by plain language found in section 5.3.a. of the Prenuptial Agreement.

              The latent ambiguity regarding timing of the payment is one that would

arise in the almost inevitable event that more than ninety days elapses between the

time "either party files a Petition for Dissolution of Marriage," under section 5.3.a., and

the time the marriage is actually "dissolved by a court of competent jurisdiction," under

section 5.1 (i.e., "ends by dissolution," under section 5.3). In that scenario, the payment



                                            - 13 -
comes due at ninety days, but the Wife's entitlement to receive the payment does not

arise until the marriage has actually been dissolved. In other words, the Husband is

required to pay within ninety days of the filing of a petition for dissolution of marriage,

but only if that petition eventually results in an actual dissolution of marriage.5

              However, reconciliation of those two requirements does not necessitate

abrogation of the plain language of the Agreement determining the amount of the

payment. The question to be resolved in this appeal would only have arisen in the less

likely event that two dissolution petitions have been filed. It involves a separate matter

of interpretation, one resolved by a provision of the Agreement that does not create an

ambiguity: "the amount listed below next to the number of full years they have been

married at the time a Petition for Dissolution of Marriage is filed." In other words, the

question whether or not the husband is late on his payment obligation will not arise until

a judgment of dissolution is entered; the question of the amount of that payment is a

different calculation altogether. As ably explained in the majority opinion, the latter

question is answered by the plain meaning of the language basing the amount on the

filing of "a" dissolution petition, which ordinarily means the first one. Golf Scoring Sys.

Unlimited, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4the DCA 2004) ("When



              5Although     the trial court pointed out this inconsistency, it did not explicitly
characterize it as a latent ambiguity. At the risk of coining a phrase, perhaps it could be
more aptly described as a barely latent ambiguity, since, as the trial court noted, both
parties acknowledged the near impossibility that a final judgment of dissolution would be
entered within ninety days of the filing of a petition for dissolution. Relatedly, I do not
agree with the majority's assumption that we must infer that the trial court found section
5.3 of the Prenuptial Agreement to be unambiguous on the question of which petition
determines the amount of the payment. See Maj. Op. supra Section II & n.3. I believe
the trial court identified inconsistencies in the Prenuptial Agreement but incorrectly
resolved them in favor of a reading that only the petition that results in a dissolution
should determine the amount of the payment.

                                             - 14 -
interpreting a contract, a court should give effect to the plain and ordinary meaning of its

terms.").




                                           - 15 -
