ANDRES SUAREZ, vs ELSA SUAREZ

Miami, FL - Divorce lawyer represented defendant appealing the entryof a contempt order for failure to make alimony payments.

The Former Wife and the Former Husband were married for twentytwo years. During this time, they founded and operated a Santeria church in

Miami called the Ochosi Yoruba Church. They entered into the MSA in

September 2006, and the MSA was incorporated into their final divorce

decree on November 6, 2006.

The MSA provides that the Former Husband will pay alimony to the

Former Wife in order to compensate the Former Wife for the value of her

share of the Church, the real property the Church occupied, the marital home

(which was located in the Church premises), and the non-profit organization

that operated the church (the "Alimony Provision”).

The Alimony Provision reads as follows:

ALIMONY: The Husband shall pay the Wife the amount of Three

Hundred Thousand Dollars ($300,000.00) as Alimony. This

money represents the Wife's claim of a half interest in the Ochosi

Yoruba Church, Inc., which is the Husband's non-profit

organization. The Husband will make to the Wife a lump sum

payment of One Hundred and Fifty Thousand Dollars

($150,000.00) on the day of the execution of this agreement and

shall make monthly payments of Four Thousand One Hundred

Sixty-Six Dollars with Sixty-Seven Cents ($4,166.67) for a period

of three (3) years beginning on the 1st of October 2006 for the

remaining balance of $150,000.00.

The MSA provides that this obligation is non-modifiable and also

provides that the Former Husband will retain ownership of both the real

property (including the Church and the home) and the business organization.

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The real property provision and the business provision of the MSA, both

contained within a section titled "Equitable Division of Assets and Liabilities,”

read in relevant parts, as follows:

REAL PROPERTY: As to the "Ochosi Yoruba Church” . . . The

Home [sic] currently titled/financed in the corporation name of

Ochosi Yoruba Church a non-profit organization. Both parties

have agreed that the Husband shall retain the property. The Wife

shall immediately quit claim her interest in said property to the

Husband. The Husband agrees to be responsible for said

mortgage and hold the Wife and Wife's credit harmless from any

damage or responsibility. The Husband shall refinance the

property in order to remove the Wife's name and credit off the

property.

BUSINESS: The parties founded a non-profit organization

named "Ochosi Yoruba Church” and established a corporation

under the same name . . . . The Wife has agreed to waive all

rights and interest in said corporation.

In August 2018, approximately ten years after the last alimony payment

was due, the Former Wife filed a Motion for Civil Contempt and Enforcement

of Alimony ("the Motion”), claiming, among other things, that her Former

Husband had failed to pay the alimony due her pursuant to the MSA's

Alimony Provision. The Former Husband moved to dismiss the Motion,

arguing that, as a matter of law: (i) the Former Wife's claim was barred by

the doctrine of laches; and (ii) because the Alimony Provision was not for

"support” of the Former Wife, the provision could not be enforced via the

court's contempt powers. The trial court denied the Former Husband's

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motion to dismiss, without prejudice to the trial court revisiting the issues

after conducting an evidentiary hearing on the Motion.

After conducting the evidentiary hearing,1 the trial court entered the

detailed order on appeal. In its March 2, 2020 order, the trial court found that

the MSA was "structurally ambiguous” and that the MSA contained "latent

ambiguities on the face of the contract.” Due to this ambiguity finding, the

trial court relied upon the parol evidence adduced at the evidentiary hearing

(admitted over the Former Husband's objection) to discern the parties' intent

regarding the Alimony Provision. Based on this parol evidence, the trial court

found that the parties' intent in drafting the Alimony Provision was for the

Former Husband to provide alimony "support” payments to the Former Wife,

therefore subjecting enforcement of the Alimony Provision to the court's

contempt powers.

Also based on the evidence adduced at the evidentiary hearing, the

trial court found that the Former Husband had made only $170,925 of the

$300,000 in payments required under the Alimony Provision, and that the

doctrine of laches was inapplicable to bar the Former Wife's claims because

the Former Husband had not established the requisite prejudice. The trial

1 The evidentiary hearing took place over two days: October 2, 2019 and

January 16, 2020.

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court granted the Former Wife's Motion, found the Former Husband in

contempt, and sentenced the Former Husband to five days in jail. After

finding that the Former Husband had the present ability to pay the purge

amount of $5,000, the trial court gave the Former Husband ten days to pay

the purge amount and ninety days to pay the remainder of the Alimony

Provision obligation to the Former Wife. The Former Husband timely

appealed the order.

II. Analysis2

A. Support Alimony Versus Alimony for Equitable Distribution

The principal issue in this case is whether the Former Husband's

$300,000 alimony payment obligation in the MSA's Alimony Provision is for

"support” of the Former Wife or, in the alternative, for the "equitable

distribution of property.” If, as the trial court determined after admitting parol

evidence of the parties' intent, the payment obligation is for "support,” then

the trial court can enforce the obligation through its contempt powers. See

2 We review de novo the trial court's construction of the MSA. Law v. Law,

299 So. 3d 505, 509 (Fla. 3d DCA 2020). We also review findings of

ambiguity de novo. Syverson v. Jones, 10 So. 3d 1123, 1125 (Fla. 1st DCA

2009). We review the trial court's factual findings to determine whether they

are supported by competent substantial evidence. Hooker v. Hooker, 220

So. 3d 397, 403 (Fla. 2017). Finally, we review a trial court ruling on the

defense of laches for an abuse of discretion. Dep't of Revenue ex rel.

Thorman v. Holley, 86 So. 3d 1199, 1202-03 (Fla. 1st DCA 2012).

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Braswell v. Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). If, however,

the payment obligation is for the "equitable distribution of property,” then in

the enforcement of this obligation, "the only remedies are those available to

creditors against debtors.” Veiga v. State, 561 So. 2d 1335, 1336 (Fla. 5th

DCA 1990).

It appears the trial court presumed that the Former Husband's

$300,000 payment obligation was for either support alimony (enforceable

by contempt) or equitable distribution of property (not enforceable by

contempt), without recognizing that parties may agree to a hybrid species of

non-modifiable, lump sum alimony that effects a distribution of marital

property. Lump sum alimony may be awarded "to achieve equitable

distribution of the marital assets.” Vigo v. Vigo, 15 So. 3d 619, 622 (Fla. 3d

DCA 2009); Miulli v. Miulli, 832 So. 2d 963, 964 (Fla. 2d DCA 2002). "It is

well established that an award of lump sum alimony that effects a distribution

of marital property is not enforceable by contempt.” Bongiorno v. Yule, 920

So. 2d 1209, 1210 (Fla. 1st DCA 2006); Pipitone v. Pipitone, 23 So. 3d 131,

136 (Fla. 2d DCA 2002) (recognizing that "[p]ayments for equitable

distribution . . . are not enforceable by contempt”).

Essentially, the trial court found that, because the Former Husband's

$300,000 payment obligation was included in the MSA provision labelled

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"Alimony,” and because the MSA contained a separate provision labelled

"Equitable Division of Assets and Liabilities,” the MSA was ambiguous as to

whether the $300,000 payment was for "support” or "equitable distribution.”3

The trial court's reasoning is conspicuous in paragraph 26 of the order on

appeal when it found: "The term 'Alimony' (twice mentioned in the same

paragraph) should be interpreted for exactly what it suggests [sic] 'Alimony'

and not as equitable distribution of assets as Husband would suggest.”

Because of its determination that the Alimony Provision was

ambiguous, the trial court admitted extensive parol evidence as to the

parties' intent regarding this MSA provision and, based on such parol

evidence, found that the Former Wife had limited earning capacity and

intended to use the funds to buy a house. Therefore, the trial court

determined, the lump sum alimony payment was for support.

While it is true that, where a court-approved marital settlement

agreement does not specify the nature of the lump sum alimony, the trial

3 The trial court's order supports its ambiguity finding by noting that the MSA

was drafted by the Former Husband's attorney. It points to section 18(C) of

the MSA wherein the parties release each other for any "alimony, support or

maintenance,” except as provided in the MSA. With regard to this release

provision, the trial court concluded that such a provision would have been

unnecessary unless the $300,000 payment obligation was characterized as

a "support” payment. As discussed, infra, we disagree with the trial court's

construction of this provision.

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court must make the characterization in the context of the enforcement

proceeding, Pipitone, 23 So. 3d at 136, it is equally true that, where a marital

settlement agreement is unambiguous, the trial court errs by admitting parol

evidence to vary the agreement's terms. See Kipp v. Kipp, 844 So. 2d 691,

694 (Fla. 4th DCA 2003). In interpreting a marital settlement agreement's

terms to determine whether an ambiguity exists, the trial court must look

beyond a single paragraph to the "nature and substance of the whole

agreement.” Pipitone, 23 So. 3d at 138.

With these principles in mind, our review of the entire MSA reveals no

ambiguity regarding the parties' intent for the Former Husband's $300,000

payment obligation: it was a non-modifiable, lump sum alimony payment to

be paid in exchange for the Former Wife's interests in the Church, the home,

the real property and the business. The sentence in the Alimony Provision

immediately following the Former Husband's $300,000 obligation

unequivocally states: "This money represents the Wife's claim of a half

interest in the Ochosi Yoruba Church, Inc. which is the Husband's non-profit

organization.”

While the Alimony Provision does not specifically delineate what

property is included in the Wife's half interest in the Church, several

provisions of the MSA under the heading "Equitable Division of Assets and

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Liabilities” do describe the property being surrendered by the Former Wife,

notably the real property and the business. In turn, the real property means

both the Church building and the home as the premises comprise both. In

furtherance of these provisions, section 11 of the MSA expressly requires

the parties to execute "any deed, closing statement, bill of sale or transfer of

title” necessary to carry out the MSA's terms.

In section 18(C) of the MSA, the parties release each other from

"alimony, support or maintenance, except as set forth herein.” Contrary to

the trial court's conclusion (see footnote 3, supra), this provision does not

render the MSA ambiguous. The provision simply states that each party is

released from claims for "alimony, support or maintenance” other than those

expressed in the Alimony Provision and section 9's child support obligations

provision.

Based on our de novo review of the MSA, we conclude that the MSA

unambiguously characterizes the Former Husband's lump sum alimony

obligation as payment to effect a distribution of marital property. Therefore,

we reverse those portions of the order determining that the Alimony Provision

was ambiguous (i.e., paragraphs 17 through 29 of the order). Further,

because certain factual findings contained in the trial court's order were

reached based upon the trial court's erroneous determination that the

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Alimony Provision was ambiguous, we vacate those portions of the order

containing factual findings based on parol evidence admitted for the purpose

of determining the parties' intent related to the Alimony Provision (i.e.,

paragraphs 30 through 37 of the order).

Concluding that the MSA's Alimony Provision obligation is to effect an

equitable distribution of the couple's property, and therefore is not subject to

contempt enforcement, we quash those portions of the order seeking to

enforce the order through the trial court's contempt powers. See Bongiorno,

920 So. 2d at 1210.

B. Other Factual Findings and Conclusions of Law in the Order

The Former Husband also challenges the trial court's factual findings

related to the Former Husband's payment history (i.e., paragraphs 38-58 of

the order). Without further elaboration, we affirm those factual findings

because they are supported by competent substantial evidence. See

Hooker, 220 So. 3d at 403.

Finally, the Former Husband challenges the trial court's factual findings

and conclusions of law related to the Former Husband's assertion that the

Former Wife's claim is barred by the doctrine of laches (paragraphs 5

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through 16 of the order). Again, without further elaboration, we affirm these

findings and conclusions.

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III. Conclusion

Because we conclude that the parties intended the unambiguous

Alimony Provision of the MSA to serve as a non-modifiable means to

equitably distribute their marital property in the Church (including the value

of the real property, their home and their business), we both vacate the trial

court's findings of fact made in reliance of parol evidence and quash the

portion of the order holding the Former Husband in contempt. We affirm the

trial court's findings of fact and conclusions of law as they relate to the

Former Husband's payments under the Alimony Provision because they are

supported by competent substantial evidence. We also affirm the trial court's

findings that the Former Wife's claim is not barred by laches.

We remand for proceedings consistent with this opinion.



Affirmed in part, reversed in part, vacated in part, quashed in part, and

remanded.