JILL PARDES, ETC.,

v.

ANDRIA PARDES,

Third District Court of Appeal State of Florida

Opinion filed October 27, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-2406 Lower Tribunal No. 14-10507 ________________

Jill Pardes, etc., Appellant/Cross-Appellee,

vs.

Andria Pardes, Appellee/Cross-Appellant.

An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake, Voluntary Trial Resolution Judge.

Law Offices of Paul Morris, P.A., and Paul Morris; Law Offices of Kornreich & Assoc., and Gerald Kornreich and Amber Kornreich; Cotzen Law, P.A., and Michael Cotzen, for appellant/cross-appellee.

Barry S. Franklin & Associates, P.A., and Barry S. Franklin, for appellee/cross-appellant.

Before EMAS, LOGUE and SCALES, JJ.

EMAS, J.

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INTRODUCTION

Jill Pardes, as Personal Representative of the Estate of Michael Pardes (“Former Husband”)¹ appeals the amended final judgment of dissolution of marriage. Andria Pardes (“Former Wife”) cross-appeals the same final judgment. For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

BACKGROUND AND PROCEDURAL HISTORY

The parties, who have no minor children, were married for thirty-three years and, during the course of the marriage, separated several times and twice filed petitions for dissolution. During their separations, the parties entered into several postnuptial agreements addressing their substantial assets. Following a five-day nonjury trial held before voluntary trial resolution judge Stanford Blake,2 the trial court issued the final judgment which is the subject of this appeal and cross-appeal.

ANALYSIS

A. Former Husband’s Claims 1. Did the trial court err in failing to credit Former Husband for monies he paid toward monthly household expenses which Former Wife was contractually obligated to pay?

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According to Former Husband, the parties entered into a postnuptial agreement in 2002 (the “2002 House Agreement”), which required Former Wife to pay $2800 monthly toward household expenses on the couple’s marital home in Golden Beach (the “Golden Beach House”). Former Husband contends that because Former Wife failed to pay those expenses (thus requiring Former Husband to do so), the trial court erred in failing to credit Former Husband for those amounts.

Former Wife countered that¹) the parties subsequently agreed she would not have to pay the monthly household expense amount; and 2) the 2002 House Agreement was superseded by the couple’s subsequent 2006 postnuptial agreement (“the 2006 Agreement”). The trial court found the greater weight of the evidence supported Former Wife’s version of the events, and accordingly, did not credit Former Husband for the amount he claimed to be owed. In reviewing a judgment rendered after a bench trial, any questions of law, including construction of the postnuptial agreements in the instant case, are reviewed de novo. Katz v. Riemer, 305 So. 3d 663 (Fla. 3d DCA 2020). In addition, typically, “the trial court’s findings of fact come to the appellate court with a presumption of correctness and will not be disturbed unless they are clearly erroneous. Thus, they are reviewed for competent, substantial

(Emphasis added). See also Witt v. La Gorce Country Club, Inc., 35 So. 3d 1033, 1040 (Fla. 3d DCA 2010) (holding that, pursuant to section 44.104(11), an appellate court is “bound by the factual findings of the trial resolution judge”). As such, the trial court’s factual determinations—that the parties agreed Former Wife would no longer be responsible for the monthly household expenses, and that Former Husband never expected to be paid— are not subject to review by this court.³

3 We note, however, that even if we were reviewing such a claim under our traditional standard of review, we would hold that the trial court’s factual determinations are supported by competent substantial evidence.

4 To the extent Former Husband argues that he was entitled, as a matter of law, to reimbursement for the monthly expenses which predated the 2006 Agreement, we note that Florida law does recognize the concept of

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2.

Did the trial court err in finding Former Husband breached the 2006 Agreement by failing to disclose to Former Wife the Crystal Bay Investment?

Former Husband contends the trial court erred in finding he breached the 2006 Agreement by failing to disclose to Former Wife the Crystal Bay Investment. As a result of this finding, the trial court ordered that the $1,618,555 Former Husband lost in this investment—a loss which Former Husband included in his net worth calculation—be removed as a liability in his net worth calculation. Former Husband contends that the evidence at trial established that Former Wife was aware of the Crystal Bay investment, and thus there had been no breach of the 2006 Agreement. However, the 2006 Agreement

abandonment by the conduct of the parties to a contract. See Gustafson v. Jensen, 515 So. 2d 1298, 1300 (Fla. 3d DCA 1987) (holding: “In Florida, an antenuptial agreement may be abandoned by mutual consent without consideration”); McMullen v. McMullen, 185 So. 2d 191, 193 (Fla. 2d DCA 1966) (same and noting: “The abandonment of a contract may be effected by the acts of on one of the parties thereto where the acts of that party are inconsistent with the existence of the contract and are acquiesced in by the other party”). See also Sinclair Refining Co. v. Butler, 172 So. 2d 499 (Fla. 3d DCA 1965); Painter v. Painter, 823 So. 2d 268, 270 (Fla. 2d DCA 2002) (noting “abandonment of a contract . . . may be proved by showing that the acts of one party are inconsistent with the existence of the contract and that the other party acquiesced in those acts.”) The trial court committed no error in applying these principles of contract law and we affirm this aspect of the final judgment.

5 Even if we were to review the challenged findings for competent substantial evidence, we would affirm the trial court’s finding that Former Wife did not know of or approve the Crystal Bay Investment before that investment was made, and that Former Husband therefore breached the 2006 Agreement in this regard. See Corrales v. Corrales, 320 So. 3d 217, 220 (Fla. 3d DCA 2021) (“Recognizing ‘the trial court’s superior vantage point in assessing the credibility of witnesses and in making findings of fact,’ we conclude the challenged findings are well-supported by competent, substantial evidence”) (quoting Porter v. State, 788 So. 2d 917, 923 (Fla. 2001)).

(a) 1. “Marital assets and liabilities” include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. b. The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. c. The paydown of principal of a note and mortgage secured by nonmarital real property and a portion of any passive appreciation in the property, if the note and mortgage secured by the property are paid down from marital funds during the marriage. The portion of passive appreciation in the property

2. All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

3. All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital.

4. The burden of proof to overcome the gift presumption shall be by clear and convincing evidence.

(b) “Nonmarital assets and liabilities” include: 1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets; 3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;

4. Assets and liabilities excluded from marital assets and

liabilities by valid written agreement of the parties, and

(Emphasis added). Relevant to this discussion, the parties’ 2006 Agreement provides: Subject only to the terms of this Agreement and the [2002] House Agreement, each party hereto shall, during his or her lifetime, be the sole and exclusive owner of all of his or her respective separate property and shall have the sole and exclusive right to dispose of any and all such separate property during his or her lifetime, . . . as if the parties were never married.

It is undisputed the Ocean Boulevard Residence was purchased solely by Former Wife, using her own funds, during a period of separation from Former Husband (while dissolution proceedings were pending). Pursuant to the above provision of the 2006 Agreement, the Ocean Boulevard Residence would appear to be properly designated as Former Wife’s “separate property.” Nonetheless, Former Husband argues that because they lived there as a couple, made it their “marital home,” and Former Wife allowed him to spend his own funds to improve the property, the residence should have been deemed marital property pursuant to Hooker. In Hooker, the trial court determined that certain nonmarital property was (pursuant to the terms of a prenuptial agreement), in fact, marital property, because the titled spouse intended it to be an interspousal gift. On appeal, the Fourth District reversed the trial court’s determination. See

6 Even if we were to review this claim under a standard of competent substantial evidence, the same result would follow: The couple had marital problems for years, and each had their own money and assets. They entered into several agreements to deal with the disposition of their property and one of those agreements (as discussed supra) expressly defined nonmarital property, which definition encompasses the Ocean Boulevard Residence. The evidence established that Former Wife bought the Ocean Boulevard Residence and title was always held in a land trust, upon the advice of her attorney during the prior divorce proceedings. Former Wife also spent substantial amounts of her own money on renovations and improvements, which she arranged and worked on with the contractors, and which were designed to suit her own personal tastes and preferences. There was also evidence that Former Husband had offered to buy a one-half interest in the Ocean Boulevard Residence while living there, an offer that Former Wife rejected. The Florida Supreme Court in Hooker minced no words in characterizing an appellate court’s role in these cases: “It is clear, due to the trial court’s ‘superior vantage point’ in reviewing and weighing testimony and evidence presented at trial, that appellate courts are to defer to trial courts’ findings of whether disputed property is marital or nonmarital.” Hooker, 220 So. 3d at 404.

(Emphasis added). Former Husband counters that written consent was not required because the terms of the parties’ agreement were altered through their course of conduct: Former Wife never provided written consent, preferring to defer to her father’s financial acumen and his blessing with regard to Former Husband’s choice of investments. In its amended final judgment, the trial court found the wife had at least tacit knowledge of the investment and while her Father didn’t think it was a good investment, there was nothing sent to the Husband telling him not to do that investment. The Wife even testified that Stargate Mobile was like a Life Alert and thought it was a good idea if it could help find dogs. Therefore, the $1,700,000 investment will not be added back in the Husband’s net worth.

Thus, the question for this court is whether the trial court properly considered the parties’ course of conduct relative to investments by Former

Although Former Husband claimed an entitlement to much more, the trial court awarded him $105,183.18 for monies he spent to improve the Ocean Boulevard Residence, expenditures for which he was not obligated to pay, and which were not contemplated under the 2006 Agreement. Former Wife asserts that the trial court should not have awarded Former Husband this amount because she objected to the work he paid for, and because the work—which she describes as “landscape improvements”—did nothing to increase the value of the home. However, the amount awarded by the court was based on calculations made by Former Wife’s own expert, and included landscaping, installation of air conditioning, tile, and appliances. The Former Wife’s expert testified that these items were “home improvements.” Although the 2006 Agreement required Former Husband to pay for “all the expenses attendant to and associated with such residence(s),” he was not required to pay for improvements to her separate property, including the Ocean Boulevard Residence. Accordingly, there was no error of law, and Former Wife (and this court) are bound by the factual findings of the trial

In the 2002 House Agreement, the parties agreed that a particular piece of artwork purchased by Former Husband, (“the Tremblay artwork”), would be retained as Former Husband’s separate property. However, in the 2006 Agreement, the parties agreed that Former Wife’s “separate property shall include, but not be limited to, all of the artwork, jewelry (excluding the Husband’s jewelry), furniture, furnishings, personal property and contents currently located in the parties’ marital residence. It is specifically understood that the Wife shall have the sole option to remove any or all of the foregoing from the said marital residence upon her vacating the marital residence.” (Emphasis added). Nonetheless, the trial court awarded the Tremblay artwork to Former Husband, finding it was his nonmarital property. Because this issue is resolved upon the plain and unambiguous terms of the 2006 Agreement (which superseded the 2002 House Agreement to the extent it modified, or was inconsistent with, the 2002 House Agreement) we apply a de novo standard in reviewing this claim. Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. 2015).

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CONCLUSION

We reverse only that portion of the Final Judgment with directions to amend the Final Judgment and award the Tremblay artwork to Former Wife. In all other respects, we affirm the thorough Final Judgment of the trial court. Affirmed in part, reversed in part, and remanded with directions.