       IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

                                      March 30, 2016


ANTHONY FELICE,                            )
                                           )
              Appellant,                   )
                                           )
v.                                         )      Case No. 2D14-2862
                                           )
MELISSA FELICE,                            )
                                           )
              Appellee.                    )
                                           )



BY ORDER OF THE COURT:


              The appellee's motion for rehearing is granted. The prior opinion dated

December 30, 2015, is withdrawn, and the attached opinion is substituted therefor. No

further motions for rehearing or clarification will be considered.



I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.




MARY ELIZABETH KUENZEL
CLERK
                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT



ANTHONY FELICE,                                )
                                               )
              Appellant,                       )
                                               )
v.                                             )          Case No. 2D14-2862
                                               )
MELISSA FELICE,                                )
                                               )
              Appellee.                        )
                                               )

Opinion filed March 30, 2016.

Appeal from the Circuit Court for Collier
County; Christine Greider, Judge.

Anthony Felice, pro se.

No appearance for Appellee.



MORRIS, Judge.

              Anthony Felice, the former husband, appeals an amended final judgment

of dissolution of marriage. He raises numerous issues on appeal, but we find merit to

only two. First, the trial court erred in including a portion of the value of the former

husband's premarital home as a marital asset in the equitable distribution scheme.

Second, the trial court erred in failing to incorporate into the amended final judgment the

amended parenting plan that the trial court ordered on rehearing from the original final

judgment. We reverse the amended final judgment as to these two issues, but we
affirm the remainder of the amended final judgment.1

             I. Prenuptial Agreement Regarding the Former Husband's Premarital
Home

             In May 2000, before they were married, the parties executed a prenuptial

agreement that solely addresses the parties' rights to a premarital home owned by the

former husband:

             1. The Prospective groom, ANTHONY FELICE, shall, not
             with standing [sic] any dissolution proceedings or law
             applicable thereto, at any time, and in any jurisdiction, be
             entitled to any and all equity and rights of ownership in his
             home located [on Marco Island, Florida]. Said property shall
             be always and forever pursuant to agreement of the parties,
             remain pre-marital property. At no time shall MELISSA A[.]
             CUNNINGHAM, be entitled to any interest in said home
             unless such right is granted with the same formality as the
             instant instrument[.]
             2. The Prospective bride shall, not withstanding [sic] any
             dissolution proceeding, at any time in any jurisdiction, NOT
             be entitled to any interest in the Pre-Marital home of the
             Husband located [on Marco Island].

             In the amended final judgment of dissolution, the trial court concluded that

the prenuptial agreement is enforceable. The trial court further found that the language

of the agreement does not prevent the former wife from claiming an interest in the

former husband's premarital home:

             The Court finds that the Prenuptial Agreement fails to
             specifically address whether or not the provisions of the
             agreement apply to the enhanced value of [the former



             1
                We note that the former husband has failed to provide a complete
transcript of the hearings below. Our review of these two issues, however, is not
hindered by the lack of a complete record because the errors are legal errors apparent
from the face of the amended final judgment. See Chirino v. Chirino, 710 So. 2d 696
(Fla. 2d DCA 1998) ("[E]ven where the appellant fails to provide a transcript, the
absence of a transcript does not preclude reversal where an error of law is apparent on
the face of the judgment.").


                                          -2-
              husband's] premarital property that resulted from the
              contribution of marital funds or labor.
                      The Agreement does not define what is pre-marital
              and has no reference to what assets are "nonmarital." In
              short, the agreement fails to specifically exclude the active
              enhancement of the [former husband's] premarital asset
              from equitable distribution. Specifically, the Court finds that
              the language contained in Paragraph (1) of the prenuptial
              agreement . . . does not constitute a complete waiver of
              marital enhancement. . . .
                      Similarly, Paragraph (2) of the Prenuptial Agreement
              reflects the [former wife] not being entitled to any interest in
              the Pre-Marital home of the [former husband]. The Court
              interprets this . . . as prohibiting the Court from using the
              [former husband's premarital] home as security for the
              equalizing payment, as doing so would improperly be giving
              the [former wife] an "interest" in the home.
                      The Court finds that the Prenuptial Agreement is
              silent to the definition of nonmarital assets and altogether
              fails to address and exclude the enhanced value of the
              nonmarital asset resulting from marital efforts or marital
              income or earnings used to enhance the value of the [former
              husband's] premarital home.
                      In short, the language of the enforceable Prenuptial
              Agreement protects the [former husband's] premarital asset
              (his home), but does not protect the enhancement or
              appreciation of the value of the home during the marriage,
              as a result of marital income or efforts.

              The trial court found that the home had a fair market value of $365,000 at

the time of filing. The trial court further found that the parties had used marital funds

during the course of the marriage to pay down both a home equity line of credit

(HELOC) and a mortgage on the home and that the enhancement in value that occurred

as a result ($167,507) was a marital asset. The trial court also found that the fair

market value of the home had appreciated $55,000 during the marriage and that the

marital share of that appreciation was $29,719. The trial court found that the total

marital interest in the home was $197,226. The trial court counted this amount

($197,226) as a marital asset in the equitable distribution schedule, and the trial court



                                            -3-
counted the premarital value of the home ($167,774) as a nonmarital asset belonging to

the former husband.

               On appeal, the former husband contends that trial court erred in including

the appreciation of the former husband's premarital home as a marital asset in the

equitable distribution schedule. He argues that the prenuptial agreement clearly

provides that the former husband is entitled to any and all equity in his premarital home,

including any enhanced value and appreciation, and that the former wife is not entitled

to any interest or equity in the former husband's premarital home.

               In the amended final judgment of dissolution, the trial court relied on four

cases from this court, including Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003). In

Irwin, this court held that the trial court erred in its interpretation of the prenuptial

agreement entered into by the parties. In the agreement, the wife waived and released

all rights in the property and estate of the husband, whether he owned it prior to

marriage or acquired it during marriage and regardless of title. Id. at 248. The trial

court concluded "that, as a consequence of these provisions, there was no marital

property to divide." Id. On appeal, this court concluded that the trial court engaged in

an "overbroad application of the waivers contained in the agreement." Id.

               The agreement did not specifically reserve [the husband's]
               marital earnings as his separate property, and thus did not
               exclude [the wife's] claim to share in the value of assets
               purchased with those earnings. Nor did the agreement
               waive [the wife's] claim to her rightful share of the marital
               asset consisting of the enhanced value of [the husband's]
               separate property that resulted from the contribution of
               marital funds or labor.

Id. at 248-49 (citations omitted) (emphasis added). This court's opinion in Irwin was

recently disapproved of by the Florida Supreme Court.



                                              -4-
              In Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015), the supreme

court approved a decision by the Fourth District holding that the broad language of the

prenuptial agreement waived "the wife's right to any asset titled in the husband's name

that was acquired during the marriage or that appreciated in value due to marital income

or efforts during the marriage." Id. at 986 (quoting Hahamovitch v. Hahamovitch, 133

So. 3d 1008, 1015 (Fla. 4th DCA 2014)).

                      In the valid prenuptial agreement in this case, the wife
              waived and released any and all rights and claims to all
              property solely owned by the husband at the time of the
              agreement or acquired in the future. Specifically, the parties
              contracted that each party would "keep and retain sole
              ownership, control, enjoyment and power of disposition with
              respect to all property, real, personal or mixed, now owned
              or hereby acquired by each of them respectively, free and
              clear of any claim by the other," that "each party agrees that
              neither will ever claim any interest in the other's property,"
              and if one party "purchases, [a]cquires, or otherwise obtains,
              property in [his/her] own name, then [that party] shall be the
              sole owner of same." Accordingly, based on the plain
              meaning of this language, any property the husband owned
              at the time of execution of the premarital agreement and any
              property the husband acquired in his name after the
              execution of the agreement, including any enhancement in
              value or appreciation of such properties, are the husband's
              nonmarital assets.

Id. at 986-87 (footnote omitted). The supreme court then briefly addressed the two

cases with which the Fourth District had certified conflict: Irwin, 857 So. 2d 247, and

Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004):

                      When a prenuptial agreement includes such broad
              provisions but does not specifically waive a spouse's claim to
              the other spouse's earnings, assets acquired with those
              earnings, and the enhanced value of the other spouse's
              property resulting from marital labor or funds, the Second
              and Third Districts have held the prenuptial agreement is not
              sufficient to waive a spouse's right to seek equitable
              distribution of such assets. See Irwin, 857 So. 2d 248-49;



                                            -5-
              Valdes, 894 So. 2d at 267. However, these distinctions run
              counter to a prenuptial agreement's actual language that
              expressly encompasses all property solely owned by one
              spouse presently and in the future and that expressly waives
              all of the other spouse's rights and claims in such property.

Hahamovitch, 174 So. 3d at 987. The supreme court disapproved Irwin and Valdes "to

the extent they conflict with this decision." Id.2

              The agreement in this case provides that the husband shall be entitled to

any and all equity in his premarital home and that the wife shall not be entitled to any

interest in the husband's premarital home unless granted such interest in a formal,

written instrument. Even though the agreement does not specifically refer to any right to

the appreciation or enhancement of the former husband's premarital home, the broad

language of the agreement expressly waives the former wife's rights and claims in the

property and is considered to include the appreciated or enhanced value of the property

that occurs during the marriage. In light of the supreme court's Hahamovitch decision

and by virtue of its disapproval of Irwin and Valdes, we must reverse the trial court's

interpretation of the prenuptial agreement in this case and remand for the trial court to

recalculate the equitable distribution scheme after excluding the $197,226 amount that

represents the appreciated or enhanced value of the former husband's premarital home.

On remand, the trial court may revisit the interrelated issue of attorney's fees. See


              2
                In Valdes, the wife asserted that "she was entitled to the enhanced value
of [the husband's] non-marital property" despite having signed a prenuptial agreement
waiving her right to the husband's nonmarital property. 894 So. 2d at 266. The trial
court ruled that because there was no "specific waiver of the enhanced value to non-
marital property in the prenuptial agreement, the enhancement value of the non-marital
assets resulting from marital efforts were subject to equitable distribution." Id. Relying
in part on Irwin, the Third District concluded that because the prenuptial agreement
does not address enhancement value, the "trial court properly found that [the wife] did
not waive her right to seek equitable distribution of the enhanced value of the non-
marital properties, despite the prenuptial agreement." Id. at 267.


                                             -6-
Conner v. Conner, 439 So. 2d 887, 887 (Fla. 1983); Santiago v. Santiago, 51 So. 3d

637, 639 (Fla. 2d DCA 2011).

              II. Amended Parenting Plan

              The former husband argues that the trial court modified the parenting plan

in its order on motions for rehearing but failed to implement the new parenting plan in

the amended final judgment. His contention is supported by the record. Paragraph 4 of

the original final judgment addressed the parenting plan adopted by the trial court, and a

parenting plan was attached to the original final judgment. The parties then filed

motions for rehearing. The trial court entered an order on rehearing, making the

following findings and conclusions with regard to the parenting plan:

              The provisions of the Parenting Plan shall be revised, in
              order to clarify that there is a regular and ongoing
              timesharing schedule to be implemented when the Former
              Husband is in Collier County. Accordingly, Section VII.
              Paragraph A of the Parenting Plan shall be stricken.
              Paragraph B. iv. will be moved to the top to as [sic]
              Paragraph A and shall be re-worded so that this is the
              regular schedule. The Notice requirements shall be
              amended, so that when the Former Husband is gone from
              Collier County for more than 21 days, [he] should give the
              Former Wife 14 days-notice of when he will be returning and
              for how long he is returning. Further, the Former Husband
              must provide the Former Wife with as much notice as
              possible in advance of his leaving, to allow her to properly
              plan for his absence.

Despite this language in the order on rehearing, the language of the amended final

judgment addressing the parenting plan in paragraph 4 remained the same as the

language in paragraph 4 of the original final judgment. In addition, the parenting plan

attached to the amended final judgment is the same parenting plan that was attached to

the original final judgment and does not reflect the changes ordered by the trial court in




                                           -7-
the order on rehearing. Accordingly, we reverse the amended final judgment to the

extent that the parenting plan language and attached parenting plan are inconsistent

with the trial court's rulings on rehearing. On remand, the trial court shall amend the

amended final judgment and the parenting plan to reflect its rulings in paragraph L of

the order on rehearing.

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


KHOUZAM and BADALAMENTI, JJ., Concur.




                                           -8-
