Full Opinion

Third District Court of Appeal State of Florida Opinion filed May 20, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-858 Lower Tribunal No. 16-440-P ________________ Tracy L. Gilbert, Appellant, vs. John M. Gilbert, Jr., Appellee. An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge. Annesser Armenteros, PLLC, John W. Annesser and Megan H. Conkey, for appellant. John M. Gilbert, Jr., in proper person. Before FERNANDEZ, LINDSEY, and MILLER, JJ. FERNANDEZ, J. The former wife, Tracy L. Gilbert (“the wife”), appeals the trial court’s “Order on Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage.”1 First, we reverse the trial court order with respect to the denial of the wife’s request for attorneys’ fees, suit monies, and costs because the wife is entitled to such fees and costs pursuant to paragraph 17 of the Marital Settlement Agreement, specifically the prevailing party provision, as she prevailed on all issues raised in the husband’s “Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage.” We also reverse the trial court’s denial of the wife’s request for attorneys’ fees with respect to her “Motion to Enforce Terms of Marital Settlement Agreement, Motion to Compel Payment and Motion for Contempt.” We remand the case: 1) for the trial court to hold a hearing on attorneys’ fees owed to the wife as the prevailing party on the husband’s “Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage;” and 2) for the trial court to make findings that support its conclusion as to the wife’s “Motion to Enforce Terms of Marital Settlement Agreement, Motion to Compel Payment and Motion for Contempt.” We reach no conclusion as to entitlement with respect to the latter. The wife and her former husband, John M. Gilbert, Jr. (“the husband”), were married on July 11, 1987. The wife filed an action for dissolution of marriage in 1 The former husband, John M. Gilbert, Jr., who was represented by an attorney during the trial court proceedings, is appearing before us pro se on this appeal. However, because he failed to file his answer brief on time, this Court has precluded him from filing one. 2 Monroe County, Florida in 2016. As a result of two mediations, the parties reached a settlement that resolved all disputed issues, including their marital rights and obligations, and provided for equitable distribution of the marital property. The settlement is memorialized in a Marital Settlement Agreement (“MSA”) which they executed on April 12, 2017. Pursuant to the MSA, the wife was to receive from the husband, among other things, a $3,100,000.00 equalizing payment. This payment was to be secured by a promissory note and mortgage executed by the husband, which encumbered the former marital residence. The equalizing payment was to be made in the following three installments: 1. $100,000.00 (First Installment Payment) to be paid seven days after the execution of the MSA; 2. $1,500,000.00 (Second Installment Payment) to be paid on or before July 15, 2017; and 3. $1,500,000.00 (Third Installment Payment) to be paid no later than September 30, 2018. The MSA further provided that if the husband failed to make the third installment payment on time, the husband would be required to pay the wife interest, on a monthly basis, until the principal installment payment was made. In addition, the MSA provided: In the event it becomes necessary for either party to institute any legal action to enforce any of the terms of this Marital Settlement Agreement or its Addendum, the prevailing party in such enforcement action shall 3 be entitled to recover all reasonable attorneys’ fees, suit money and costs expended, including appellate attorneys’ fees and costs. (Emphasis added). On April 12, 2017, the trial court entered a Final Judgment of Dissolution of Marriage, which ratified, approved, and incorporated by reference the MSA. The trial court retained jurisdiction to enforce the terms of the MSA. On September 30, 2018, the husband failed to make the third installment payment as required by the MSA. Thus, he was required to begin making monthly interest payments to the wife. Thereafter, on January 17, 2019, the husband filed his “Urgent Motion to Compel Former-Wife to Substitute Collateral and Release Mortgage” (“Urgent Motion”), asking the trial court to order the wife to release her mortgage on the former marital residence (which secured the husband’s equalizing payment obligation) and to subrogate her security interest to a third-party lender to allow the husband to borrow money against the former marital residence. On January 22, 2019, the wife filed her “Response in Opposition to Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage,” which, among other things, requested that the trial court award her attorneys’ fees and costs incurred as a result of the husband’s Urgent Motion. After that, the husband defaulted on the MSA when he did not make the required interest payment in the amount of $8,750.00 to the wife, which was due on January 31, 2019. 4 Consequently, the wife filed her “Motion to Enforce Terms of Marital Settlement Agreement, Motion to Compel Payment and Motion for Contempt” (“Motion to Enforce”). The Motion to Enforce requested that the trial court enforce the MSA’s payment terms and compel the husband to make the past-due $8,750.00 interest payment. The motion also requested that the trial court award the wife her attorneys’ fees and costs incurred because she had to file the subject motion, as well as attend the hearing on the motion. After the wife filed the Motion to Enforce, but six days before the hearing before the trial court, the husband filed a response to the Motion to Enforce on February 20, 2019, contending that the wife’s motion was moot because the husband had made the delinquent $8,750.00 payment that same day, on February 20, 2019. On February 26, 2019, the trial court held the hearing on both the husband’s Urgent Motion and the wife’s Motion to Enforce. Because the husband had already paid the $8,750.00 delinquent payment six days before the hearing, the only issue before the trial court with respect to the wife’s “Motion to Enforce Marital Settlement Agreement and Compel Payment” was the award of attorney’s fees and costs the wife spent in bringing this motion. 2 2 The wife abandoned her Motion for Contempt during this hearing before the trial court). 5 At the end of the February 26th hearing, the trial court reserved ruling on the husband’s Urgent Motion and orally summarily denied the wife’s Motion to Enforce, including her request for attorney’s fees and costs. On March 4, 2019, the wife filed her Motion for Reconsideration of the trial court’s oral denial of her Motion to Enforce and the denial of attorney’s fees and costs. Then, on March 14, 2019, before ruling on the wife’s Motion for Reconsideration, the trial court entered its “Order on Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage.” There, the trial court: 1) denied the husband’s Urgent Motion; 2) denied the wife’s Motion to Enforce; and 3) denied the wife’s request for attorneys’ fees, suit monies, and costs. On March 22, 2019, the wife filed her “Motion for Reconsideration of Ruling on Former Wife’s Request for Attorney’s Fees and Costs” set forth in the “Order on Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage.” The trial court denied the motion for reconsideration. The wife now appeals the trial court’s denial of her attorneys’ fees and costs as requested in both motions. On appeal, the wife contends that the trial court erred by summarily denying her request for an award of attorney’s fees and costs as the prevailing party under the parties’ MSA. She contends that the trial court had no discretion to deny her an 6 award of attorneys’ fees and costs under the terms of the MSA because she was the prevailing party as to all matters brought before the trial court. “Entitlement to attorney’s fees based on the interpretation of a statute or contract is subject to de novo review.” Burton Family P’ship v. Luani Plaza, Inc., 276 So. 3d 920, 922 (Fla. 3d DCA 2019). Marital settlement agreements are to be interpreted like any other contract. Kirschner v. Kirschner, 244 So. 3d 1105, 1111 (Fla. 4th DCA 2018). In Florida, it is well-settled that entitlement to attorneys’ fees can derive only from a statute or from an agreement between the parties. Topalli v. Feliciano, 267 So. 3d 513, 518 (Fla. 2d DCA 2019). As in the case before us, where there is an agreement between the parties for the payment of attorneys’ fees, “Trial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). “The trial court must make specific factual findings— either at the hearing or in the written judgment—supporting its determination of entitlement to an award of attorney’s fees.” Ortiz v. Ortiz, 227 So. 3d 730, 733 (Fla. 3d DCA 2017). In the trial court’s March 14, 2019 “Order on Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage” that the wife is appealing, the trial court summarily denied the wife’s request for 7 attorneys’ fees, suit monies, and costs without explanation. The parties’ MSA provided that: 17. Attorneys’ Fees, Suit Money and Costs: . . . In the event it becomes necessary for either party to institute any legal action to enforce any of the terms of this Marital Settlement Agreement or its Addendum, the prevailing party in such enforcement action shall be entitled to recover all reasonable attorneys’ fees, suit money and costs expended, including appellate attorneys’ fees and costs. Here, it is clear that the wife was the prevailing party with regard to the husband’s Urgent Motion. The test to determine the prevailing party is whether the party “prevailed on the significant issues tried before the court.” Prosperi v. Code, Inc., 626 So. 2d 1360, 1362 (Fla. 1993). The trial court stated in its March 14, 2019 Order: 1. This Court lacks subject matter jurisdiction to adjudicate the relief requested in Former Husband’s Urgent Motion. Even if the Court had subject matter jurisdiction, there is no legal basis to grant the relief requested by the Former Husband. 2. Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage is hereby DENIED. Thus, the wife prevailed on all issues raised in the husband’s Urgent Motion, as he did not obtain any of the relief he requested. Accordingly, the wife is entitled to an award of attorneys’ fees, suit money and costs incurred in opposing the husband’s motion pursuant to paragraph 17 of the MSA. Christensen v. Christensen, 45 Fla. L. Weekly D520 (Fla. 2d DCA March 6, 2020). Furthermore, the trial court in that same March 14, 2019 order denied the wife’s Motion to Enforce Terms because the husband had already paid the 8 delinquent $8,750.00 interest payment. We agree with the wife that the trial court erred in summarily denying her request for attorney’s fees and costs as related to her motion. According to the MSA, the husband was obligated to make regular interest payments to the wife, and he did not, as he missed the January 31, 2019 payment. This default by the husband triggered the application of the fees provision in the MSA. Accordingly, the wife filed the Motion to Enforce. However, a few days before the trial court held its February 26, 2019 hearing on the husband’s motion and the wife’s motions, the husband voluntarily made the delinquent interest payment. By then, the wife had already incurred the attorneys’ fees and costs associated with filing the Motion to Enforce. The result of filing this motion was that the husband made his delinquent payment, and thus, the wife arguably prevailed on her motion, as she achieved what she sought in the motion, which was to compel the husband to pay the $8,750.00 missed payment. At the February 26, 2019 hearing before the trial court, the trial court summarily denied the wife’s request without providing a basis for the denial. Although we recognize that deference should be given to the trial court in deciding who is the prevailing party, “[i]n a breach of contract action, one party must prevail.” Green Cos., Inc. v. Kendall Raquetball Inv., Ltd., 658 So. 2d 1119, 1121 (Fla. 3d DCA 1995). In the wife’s Motion to Enforce action for the husband’s breach of the 9 MSA, the trial court did not award attorneys’ fees to a prevailing party and did not specifically find that neither party prevailed. Thus, trial court erred in not making findings as to who prevailed on the significant issues in the wife’s Motion to Enforce. Lucite Ctr., Inc. v. Mercede, 606 So. 2d 492 (Fla. 4th DCA 1992). Accordingly, based on the foregoing discussion, we reverse that portion of the trial court’s “Order on Former Husband’s Urgent Motion to Compel Former Wife to Substitute Collateral and Release Mortgage” that denies the wife’s request for attorneys’ fees, suite monies, and costs. We remand to the trial court with instructions to grant the wife’s motion for entitlement to attorneys’ fees, suit monies, and costs incurred in opposing the husband’s Urgent Motion and to determine the amount of such fees, suit monies and costs. In addition, with regard to the prevailing party attorneys’ fees and costs the wife requested in her Motion to Enforce, we reverse and remand to the trial court for further proceedings consistent with this opinion. Reversed and remanded with instructions. 10