DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

CLINTON PARKER JOHNSTON,

Appellant,

v.

SHERI JEANETTE JOHNSTON,

Appellee.

Nos. 2D2021-1457, 2D2022-1986

CONSOLIDATED

July 10, 2024

Appeals from the Circuit Court for Hillsborough County; Alissa Ellison, 

Judge.

Ralph P. Mangione of Burr & Forman, LLP, Tampa, for Appellant.

Eric R. Maier of Older Lundy Koch & Martino, Tampa, for Appellee.

LaROSE, Judge.

In this consolidated appeal, Clinton Parker Johnston (Former 

Husband) challenges the amended final judgment and award of 

temporary attorney's fees to Sheri Jeanette Johnston (Former Wife). 

We have jurisdiction over case number 2D21-1457. Fla. R. App. P. 

9.020(h), 9.030(b)(1)(A). As for case number 2D22-1986, the appeal of 

the order on Former Wife's motion for temporary support is untimely. 

See Fla. R. App. P. 9.030(b)(1)(B), 9.130(a)(3)(C)(iii), (b). Former Husband 

raised no issues about this order in his briefs. The remainder of case 

number 2D22-1986 is duplicative to case number 2D21-1457. 

Therefore, we dismiss case number 2D22-1986. We affirm the orders 
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appealed in case number 2D21-1457. We write only to address Former 

Husband's desired nonmarital-asset carveout in the equitable 

distribution of the parties' Estrella and Hatcher Road Properties.

Relevant Facts

The parties married in 2015. During the marriage, they purchased 

the Estrella and Hatcher Road Properties. These properties are jointly 

titled.

After four years of marriage, Former Husband filed for divorce. He 

asked the trial court to distribute the parties' assets and liabilities 

according to their Prenuptial Agreement. 

Paragraph 15.4 of the Prenuptial Agreement limited "the marital 

estate available for equitable distribution . . . to (b) property acquired by 

the Parties during the marriage that is clearly and directly traceable to 

[income defined as marital property by this Agreement], and (c) any other 

marital property expressly provided for by this Agreement." Paragraph 

5.1 describes the Former Husband's separate property as:

(e) the [Bayshore] residence . . . and any future 

residence purchased with the proceeds from the sale of such 

property and any other real property purchased with [Former] 

Husband's separate property or in [Former] Husband's sole 

name . . . , along with any equity in same (provided that (1) all 

pieces of real property jointly owned at the time a petition for 

dissolution for marriage or similar action is filed, unless 

separately titled, shall constitute marital property subject to 

equitable distribution and (2) in the event it is [Former] 

Husband's intention to keep a property separate but law 

requires [Former] Wife's name be added to same, the parties 

shall both execute a written document evidencing their clear 

intent)[.]

. . . .

(h) any replacements of separate property; 

(i) any property exchanged for separate property; [and] 
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(j) any property purchased with separate funds or with 

proceeds from the sale of separate property; . . . .

(Emphasis added.) Paragraph 5.2 states that "[s]eparate property is 

synonymous with non[]marital property."

After an evidentiary hearing, the trial court entered a final 

judgment. The trial court recognized that Former Husband used 

$91,240.13 and $96,000.00 from his separate, nonmarital funds to buy

the Estrella and Hatcher Road Properties, respectively. The trial court 

also found that Former Husband was "entitled to the portion of his 

separate property used to purchase the" properties. The trial court 

explained that although the parties jointly owned the properties, the

$91,240.13 and $96,000.00 were "clearly and directly traceable" to 

Former Husband's separate property and were "thus his separate,

non[]marital property under paragraphs 5.1(h), (i) and (j)." The trial 

court further reasoned that Former Husband's separate portion of the 

jointly owned property did not constitute marital property subject to 

equitable distribution under paragraph 5.1(e) as the paragraph included 

the term "equity" "when referring to separate property" and omitted the 

same term "when referring to real property jointly owned." 

Both parties moved for rehearing. Adjusting course, the trial court 

granted each motion, in part. For the Estrella and Hatcher Road 

Properties, the trial court found:

[A]lthough a portion of the Estrella and [Hatcher Road]

properties were purchased with the Former Husband's 

separate property, they were jointly titled and, accordingly, 

paragraph 5.1(e)(1) of the Prenuptial Agreement controls over 

other provisions in the Prenuptial Agreement regarding 

property acquired with a party's separate assets. Accordingly, 

each party is entitled to 50% of the net proceeds derived from 

the sale of the Estrella Property and [Hatcher Road] 

Properties, without any reimbursement to Former Husband 

for any non[]marital funds that he contributed to the 
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acquisition of these properties. Nor is there any evidence that 

the Former Husband did not intend to make a gift of these 

properties to the Former Wife. Accordingly, the Court will 

enter an Amended Final Judgment to reflect this correction 

and to adjust the equitable distribution schedule accordingly.

(Emphasis added.) The trial court entered an amended final judgment.

Discussion

Former Husband argues that the trial court erred by failing to 

credit him for the separate, nonmarital monies that he used to buy the 

Estrella and Hatcher Road Properties.1 Former Wife contends that 

Former Husband was not entitled to such carveouts for jointly titled 

marital properties.

We review the trial court's interpretation of the Prenuptial 

Agreement, a contract, de novo. See Famiglio v. Famiglio, 279 So. 3d 

736, 739 (Fla. 2d DCA 2019). Its plain language controls where the 

contract is clear and unambiguous. Hahamovitch v. Hahamovitch, 174 

1 Former Husband generally states that "the trial court abuse[d] its 

discretion in failing to award [Former] Husband a credit representing the 

amount of his separate, non[]marital monies that he contributed to the 

acquisition of the Estrella and [Hatcher Road] Propert[ies] . . . ." But his

argument focuses on the trial court's interpretation of the Prenuptial 

Agreement, not the trial court's discretion in distributing the properties. 

Former Husband also states that the de novo review for interpreting a 

contract is the "applicable" standard for this issue on appeal. 

Thus, we need not determine whether the trial court acted within 

its discretion in distributing the properties. See Lynn v. City of Fort 

Lauderdale, 81 So. 2d 511, 513 (Fla. 1955) ("It is elementary that when a 

decree of the trial court is brought here on appeal the duty rests upon 

the appealing party to make error clearly appear. An appellant does not 

discharge this duty by merely posing a question with an accompanying 

assertion that it was improperly answered in the court below and then 

dumping the matter into the lap of the appellate court for decision. 

Under such circumstances it must be held, as we now hold here, that we 

are under no duty to answer the question." (citing F E C News Co. v. 

Pearce, 58 So. 2d 843 (Fla. 1952))).
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So. 3d 983, 986 (Fla. 2015). "[T]he language itself is the best evidence of 

the parties' intent." Id. (quoting Crawford v. Barker, 64 So. 3d 1246, 

1255 (Fla. 2011)). 

The Prenuptial Agreement limited the marital estate to property 

obtained "during the marriage that is clearly and directly traceable to 

[income defined as marital property by this Agreement]" and "any other 

marital property expressly provided for by this Agreement." Paragraph 

5.1(e) is clear, though: "[A]ll pieces of real property jointly owned at the 

time a petition for dissolution for marriage or similar action is filed, 

unless separately titled, shall constitute marital property subject to 

equitable distribution." If Former Husband intended "to keep a property 

separate but law requires [Former] Wife's name be added to same, the 

parties shall both execute a written document evidencing their clear 

intent." The Estrella and Hatcher Road Properties were jointly owned 

and titled when the Former Husband sued for divorce. The parties did 

not execute a document reflecting Former Husband's intent to keep his 

contributions separate.

Former Husband claims that even if the Estrella and Hatcher Road 

Properties were marital properties, paragraphs 5.1(h), (i), and (j) 

protected his contributions of separate funds from equitable distribution. 

Noteworthily, paragraph (j) provides that Former Husband's separate 

property includes "any property purchased with separate funds." But

paragraph 5.1(e) establishes that jointly owned real property is marital 

property subject to equitable distribution. Former Husband's 

construction of paragraphs 5.1(h), (i), and (j) would leave paragraph 

5.1(e) a nullity. We reject an interpretation that gives a contractual 

provision no effect. See Williams-Paris v. Joseph, 329 So. 3d 775, 783

(Fla. 4th DCA 2021).
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Additionally, paragraph 5.1(e) specifies real property, where 

paragraphs 5.1(h), (i), and (j) refer to property in general. See generally 

id. ("[W]hen certain provisions of a contract appear to conflict, 'it is a 

general principle of contract interpretation that a specific provision 

dealing with a particular subject will control over a different provision 

dealing only generally with that same subject.' " (quoting Idearc Media 

Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So. 2d 1159, 1161 

(Fla. 3d DCA 2008))). Despite his best attempt, the Prenuptial Agreement 

does not give Former Husband a special equity in his nonmartial 

contributions to buy the marital properties.

We decline Former Husband's invitation to apply the ejusdem 

generis rule of construction. The contractual language is clear and 

unambiguous. Thus, the rule is inapplicable. See Fla. Farm Bureau 

Gen. Ins. Co. v. Worrell, 359 So. 3d 890, 893 n.2 (Fla. 5th DCA 2023) 

(explaining that ejusdem generis "provides that we construe an 

ambiguous general term in legal text by considering the specific things 

that follow and those things of the same kind, class or nature as the 

specific things identified" and that ejusdem generis applies "only when 

contractual language is ambiguous and must be construed by the 

court"); see also State v. Weeks, 202 So. 3d 1, 8 (Fla. 2016) (explaining 

that ejusdem generis is a rule of construction that "states that when a 

general phrase follows a list of specifics, the general phrase will be 

interpreted to include only items of the same type as those listed" 

(quoting State v. Hearns, 961 So. 2d 211, 219 (Fla. 2007))).

Conclusion

We dismiss case number 2D22-1986 for lack of jurisdiction and 

because it is duplicative of case number 2D21-1457. We affirm the trial 

court's amended final judgment and order awarding Former Wife 

temporary attorney's fees.
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Case number 2D22-1986 is dismissed; orders affirmed.

VILLANTI and SMITH, JJ., Concur.

Opinion subject to revision prior to official publication.