DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

HOWARD ELIAS,

Appellant,

v.

CINDY ELIAS, MAX ELIAS, JOYCE ELIAS, MAHOGANY REALITY, 

INC., ELITE SERVICES, INC., J.M.K. FAMILY ENTERPRISES, ONE 

ROYAL PALM PARTNERS, ONE ROYAL PALM ASSOCIATES, ONE 

ROYAL PALM HOLDINGS, LLC, PHILIP J. FELDMAN, ELIDIN 

ENTERPRISES, LLC, STEVEN DINGLE and SCOTT DINGLE,

Appellees.

No. 4D14-1068

[December 3, 2014]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; David E. French, Judge; L.T. Case No. 

502013DR006430XXXXSB.

Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, 

PLLC, Fort Lauderdale, for appellant.

Joel M. Weissman and Ashley M. Johnson of Joel M. Weissman, P.A., 

West Palm Beach, for appellees.

CONNER, J.

Appellant, Howard Elias (“the husband”), timely appeals the trial 

court’s order determining the date of legal separation from his wife,

Appellee, Cindy Elias (“the wife”), and the trial court’s order requiring the 

sale of some of the couple’s assets pursuant to a prenuptial agreement. 

The husband argues that the trial court erred in determining that the 

couple became legally separated pursuant to a judicial proceeding and in 

issuing the order of sale. Because we determine that the trial court erred 

in the threshold determination that the relevant paragraph in the 

prenuptial agreement was unambiguous, we reverse. Since this renders 

the trial court’s ultimate rulings moot, we remand for further proceedings.
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Pertinent Facts and Trial Proceedings

The husband and the wife entered into a prenuptial agreement.

Pertinent to this appeal is a paragraph within the prenuptial agreement 

regarding the sale of some of the couple’s joint assets upon becoming 

“legally separated.” The paragraph states:

4. Termination of Marriage; Separation. If the marriage 

shall be judicially terminated, or, if the parties become legally 

separated pursuant to judicial proceedings or an 

agreement, any property owned by the parties as tenants in 

common, joint tenants with right of survivorship, or tenants 

by the entirety, unless the parties then agree in writing to the 

contrary, shall be sold and the net proceeds of sale shall be 

distributed between the parties in equal shares or in such 

other proportions as may have been agreed by the parties by 

written agreement or in accordance with their respective 

ownership interests as tenants in common as shall be 

conclusively determined by the applicable instrument. 

After signing the prenuptial agreement, the husband and the wife married.

Subsequently, the wife petitioned for dissolution of marriage. Next, the 

wife filed a motion to determine that a legal separation had occurred 

between the parties as of the date of the filing of the petition for dissolution 

of marriage, or a subsequent date. Simultaneously, the wife filed a motion 

to determine the items to be sold pursuant to the prenuptial agreement.

The trial court held a hearing on the wife’s motions. At the hearing, the 

husband argued that the term “legally separated pursuant to judicial 

proceedings,” as used in paragraph four, was ambiguous. Additionally, 

when the wife’s attorney attempted to call her to the stand to proffer

evidence, the trial court stated:

Well, you know, I’m going to shortchange this, because I’ve 

looked at this and I understood what it is. I think once the 

Court has jurisdiction over both of the parties, that’s when the 

separation occurred, and that’s when the assets, everything

starts coming into play. . . . But once the service was 

perfected, that meant the parties meant that they were going 

to war, and at that particular point, I’m going to rule that as 

far as this - - that the plain meaning of these terms is that the 

parties become legally separated pursuant to judicial 

proceedings. Well, the proceedings started and they were 
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mandatory with regards to both parties, that’s when we had -

- the Court had jurisdiction over them. That seems to me to 

be a logical point of time. 

After the hearing, the trial court entered a written order granting the 

wife’s motion to determine the date of legal separation. The trial court 

found that the terms and conditions of the prenuptial agreement were 

unambiguous, and determined that the parties became legally separated 

on the date that the wife perfected service of her petition for dissolution on 

the husband. The trial court also granted the wife’s motion to determine 

the assets to be sold, and held that, since the parties were legally 

separated, that certain assets of the parties were to be sold. The husband 

appeals both of these orders. 

Appellate Analysis

As an initial matter, we note that this court granted the wife’s motion 

to dismiss the husband’s appeal of the trial court’s order determining the 

date of legal separation. Upon reconsideration and in conjunction with 

the facts as provided in the full record on appeal, we reverse our previous 

order. Cf. Lester v. City of St. Petersburg, 190 So. 2d 307 (Fla. 1966); Am.

Bridge v. Kromis, 555 So. 2d 1235 (Fla. 5th DCA 1989); Hampton v. A. 

Duda & Sons, Inc., 511 So. 2d 1104 (Fla. 5th DCA 1987). It is now clear 

that the trial court’s sale order was based upon its threshold determination 

of the date of legal separation, which in turn was premised upon the 

conclusion that the prenuptial agreement is unambiguous. Thus, we must 

review both orders in conjunction with one another.1

“A trial court’s interpretation of a prenuptial agreement is reviewed de 

novo, as such agreements are governed by the law of contracts.” Taylor v. 

Taylor, 1 So. 3d 348, 350 (Fla. 1st DCA 2009). “[T]he standard of review 

applicable to the determination of whether a contract is ambiguous is the 

de novo standard of review.” Essex Ins. Co. v. Simpler, 911 So. 2d 794 (Fla. 

1st DCA 2004).

Because the trial court’s decision that the parties were legally separated 

was based on a finding that the language of the prenuptial agreement was 

unambiguous, the threshold determination for us on review is whether the 

trial court’s preliminary finding was correct. 

1 The court dismissed the appeal regarding the issue of the date of legal 

separation because, standing alone, the order is a nonfinal, non-appealable 

interlocutory order. See generally Fla. R. App. P. 9.130. 
4

“A contract provision is ambiguous if it is ‘rationally susceptible to more 

than one construction.’” State, Dep’t. of Transp. v. Fla. Gas Transmission 

Co., 126 So. 3d 1095, 1101 (Fla. 4th DCA 2012) (quoting Segal v. 

Rhumbline Int’l, Inc., 688 So. 2d 397, 398 (Fla. 4th DCA 1997)). “When a 

contract is ambiguous and the parties suggest different interpretations, 

the issue of the proper interpretation is an issue of fact requiring the 

submission of evidence extrinsic to the contract bearing upon the intent 

of the parties.” Fecteau, 585 So. 2d at 1007 (quoting Bacardi v. Bacardi,

386 So. 2d 1201, 1203 (Fla. 3d DCA 1980)) (internal quotation marks 

omitted). 

One of the triggering events for the sale of marital property under 

paragraph four is “if the parties become legally separated pursuant to 

judicial proceedings or an agreement.” In Florida, there is no cause of 

action for a legal separation.2 Thus, it is unclear, in the context of Florida 

law and the facts of this case, what the language “if the parties become 

legally separated pursuant to judicial proceedings” means. Moreover, it is

also unclear, under Florida law and the facts of this case, what the 

language “if the parties become legally separated pursuant to . . . an 

agreement,” means. For those reasons, we determine that the language “if 

the parties become legally separated pursuant to judicial proceedings or 

an agreement” in the prenuptial agreement is reasonably susceptible to 

more than one construction, and the trial court erred in determining that 

the language of the prenuptial agreement was unambiguous. That error 

led to the erroneous entry of the orders determining the date the parties 

were legally separated and directing the sale of some of the marital assets.

Appellate Disposition

We reverse the trial court’s order determining the date of legal 

separation and the trial court’s sale order and direct the trial court to 

vacate those orders. Since the trial court did not accept any evidence at 

the hearing, because it determined the clause to be unambiguous, we 

2 It was suggested in the briefs and in oral argument before the trial court that 

the wife’s attorney involved in drafting or negotiating the prenuptial agreement

was a New York attorney. New York law provides a judicial proceeding for a legal 

separation of married parties. See § 200, N.Y. Dom. Rel. (2013) (“An action may 

be maintained by a husband or wife against the other party to the marriage to 

procure a judgment separating the parties from bed and board, forever, or for a 

limited time.”). However, a separate clause of the prenuptial agreement made it 

clear that interpretation enforcement of the agreement was to be pursuant to 

Florida law.
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remand the case so that the trial court may hear evidence as to the 

meaning of the clause.

Reversed and remanded.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.