DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CAROLE ANN BERG,

Appellant,

v.

ROY TIMOTHY YOUNG,

Appellee.

No. 4D13-2364 

[September 2, 2015]

Appeal and cross-appeal from the Circuit Court for the Fifteenth 

Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case 

No. 502010DR009452 SB FY.

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

PLLC, Fort Lauderdale, and Howard S. Friedman of Fischler & Friedman, 

P.A., Fort Lauderdale, for appellant.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, 

and Curtis L. Witters of Glickman, Witters & Marell, P.A., West Palm 

Beach, for appellee.

LEVINE, J.

The main issue for our consideration is the interpretation of the 

prenuptial agreement, specifically whether the wife was entitled to an 

equitable distribution of the husband’s interest in a company acquired 

from his father during the marriage. Ultimately, the trial court found that 

the husband’s interest was a separate, non-marital asset and not subject 

to equitable distribution. Further, the trial court ordered each party to 

bear their own attorneys’ fees. The wife appeals the trial court’s ruling, 

and the husband cross-appeals the trial court’s denial of attorneys’ fees. 

We find that although the trial court erred in its interpretation of the 

agreement, the final judgment may be affirmed because the trial court did 

not award the wife any interest in the company. However, we reverse and 

remand on the issue of fees. 

Roy Timothy Young, the husband, worked at Delray Motors, Inc., an 

automobile dealership. The husband’s father owned 40% of the dealership 
2

and created a trust for the benefit of the husband that held a 30% interest

in the dealership. Prior to the parties’ marriage in 1996, they executed a 

prenuptial agreement (the “agreement”). In 2002, the husband purchased

half of his father’s interest in Delray Motors (the “Delray 20%”). In 2010, 

Carole Ann Berg, the wife, petitioned for dissolution, challenging the

validity of the agreement and claiming an equitable distribution interest in 

the Delray 20%. The husband asserted the agreement was valid and 

enforceable, and that under the agreement, the wife waived any interest in 

the Delray 20%. 

The initial trial judge bifurcated the proceedings, such that the first 

part would address the validity and the construction of the agreement, and 

the second part would address all other issues. After the conclusion of

the first part, the initial judge entered an order upholding the agreement

and interpreting some of the agreement’s terms. Both parties moved for 

an award of prevailing party attorneys’ fees and for rehearing. On 

rehearing, the initial judge entered an order clarifying that the wife had a 

“right to equitable distribution of the increase in the value or enhancement 

in value of all separate assets which have appreciated due to the active 

marital efforts of the husband,” which “may include premarital assets or 

assets acquired during the marriage solely titled in the Husband’s name.” 

The initial judge denied both parties’ requests for fees, finding the husband 

prevailed on validity and the wife prevailed on interpretation. 

A successor trial judge presided over the second part. Testimony 

revealed that the husband’s income consisted of his salary, commissions, 

and trust stock distributions, all from Delray Motors. These incomes were 

dependent on the dealership’s success. The wife also worked at the 

dealership on a salary basis during most of the parties’ marriage and 

received rent from tenants in a duplex she owned. Pursuant to the 

agreement, the parties deposited their respective earnings into separate 

accounts, not a joint account and never into the other spouse’s account. 

In 2002, the husband obtained a loan to purchase the Delray 20% for 

$1,650,000.00. The purchase price was determined based on a business 

valuation report created by a firm hired by the husband to appraise the

fair market value of the dealership. The husband paid the loan off from 

his separate accounts. In 2004, Delray Motors paid off a loan to purchase 

the land upon which the dealership is located. The loan was paid with 

Delray Motors monies, including retained earnings not distributed to the 

husband and/or other shareholders. The dealership did not purchase any 

more land and did not make any improvements to buildings or build any 

new buildings between 2002 and 2010. The husband testified that Delray 
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Motors had been “[s]ignificantly less” profitable since 2002, as sales had

decreased while expenses and costs had increased. 

A personal property appraiser hired by the wife testified that the 

tangible assets of Delray Motors were worth over $2 million. A real estate 

appraiser hired by the wife testified that the value of the Delray Motors 

real property, including the buildings and improvements thereon, was

more than $17 million. A CPA hired by the wife testified that there was a 

$1,850,000.00 increase in the value of the Delray 20% based on his 2010 

valuation of Delray Motors, which he conceded used a different method 

than the firm that created the 2002 valuation report.

An automobile dealership financial advisor hired by the husband 

testified that the dealership owned too much land, and claimed no one 

would purchase the dealership for the approximately $19 million value 

given by the wife’s experts, because the gross profit was not there to 

warrant the investment. The advisor appraised Delray Motors’s 2010 

value to be $2,750,000.00. By this determination, the husband’s interest 

in the Delray 20% decreased in value. The husband’s CPA also testified 

that the value in Delray Motors as well as the husband’s Delray 20% 

interest actually decreased in value from 2002 to 2010, based on the CPA’s 

independent valuations and appraisals. 

The wife also requested additional fees pursuant to section 61.16, 

Florida Statutes. Prior to the final hearing, the trial court had awarded to 

the wife temporary attorneys’ fees totaling $51,000.00, litigation costs 

totaling $5,000, and temporary accounting fees totaling $27,250.00. At 

trial, the wife’s financial affidavit prepared at the commencement of the 

action was introduced into evidence. The affidavit showed a monthly gross 

income of $3,527.67. The wife did not produce an updated financial 

affidavit, but testified that she was unemployed, that her only income 

sources were unemployment and rent from the duplex she owned, and 

that she had no other assets. The husband’s amended financial affidavits 

introduced at trial showed two different monthly gross income amounts, 

one for $27,504.00 and one for $38,117.00. No additional testimony or 

evidence was presented regarding either of the parties’ need and/or ability 

to pay attorneys’ fees and costs. The wife’s CPA testified that he was owed 

approximately $135,000.00. The husband’s CPA testified that the wife’s 

records demonstrated that she paid approximately $125,273.00 in 

attorneys’ and accountant fees, and that this total did not include the 

$93,000.00 in payments the husband made directly. No other testimony 

regarding the fees for either party was presented to the trial court. 
4

The successor trial judge subsequently entered the final judgment of 

dissolution of marriage. The successor judge found that “[v]irtually all of 

the assets of the parties are titled solely in the name of either the Husband 

or the Wife, including the Delray Motors stock,” and under the agreement, 

“assets which are titled in the name of one of the parties are the separate 

asset of the party holding title.” However, the successor judge ruled that 

“the Wife did not waive her right to equitable distribution of the increase 

in the value or enhancement in value of all separate assets which have 

appreciated due to the active marital efforts of the Husband.” This ruling 

was consistent with the initial trial judge’s conclusion in the orders on the 

agreement from the first part of the proceedings. 

The trial court then made certain findings of fact regarding the Delray 

20%, including that “[a]ll the payments made by the Husband upon the 

Bank of America loan taken to acquire his stock of Delray Motors, Inc. 

were [] paid with his separate non-marital funds.” Thus, contrary to the 

wife’s position, the trial court found the case of Kaaa v. Kaaa, 58 So. 3d 

867 (Fla. 2010), “not applicable to the facts of this action” because no 

marital assets were used to pay for the Delray 20%. Further, the trial 

court found that appreciation of the Delray 20%, if any, “is a result of the 

passive increase in the value of the underlying land and buildings at 

Delray Motors and not the result of the active marital efforts of the 

Husband.” Accordingly, the trial court found that the Delray 20% “is the 

separate non-marital property of the Husband and there is no appreciation 

in the value of that stock which would be subject to equitable distribution”

and denied the wife’s request for equitable distribution of the Delray 20%. 

The trial court also ordered each party to bear their own attorneys’ fees 

without any further explanation. 

“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). “The standard of review of 

a trial court’s determination of equitable distribution is abuse of 

discretion. However, ‘[a] trial court’s legal conclusion that an asset is 

marital or nonmarital is subject to de novo review.’” Bell v. Bell, 68 So. 3d 

321, 328 (Fla. 4th DCA 2011) (citations omitted). Likewise, “[t]he standard 

of review of a trial court’s application and interpretation of Florida law is 

de novo.” Anthony v. Gary J. Rotella & Assocs., P.A., 906 So. 2d 1205, 

1207 (Fla. 4th DCA 2005). 

The wife argues that the trial court erred in finding there was no active 

appreciation in the Delray 20% and in denying her request for equitable 
5

distribution of said appreciation.

1 The husband responds that the wife 

waived any interest in the Delray 20% under the agreement, and it was a 

non-marital asset not subject to equitable distribution. Alternatively, the 

husband argues that the trial court correctly found there was no active 

appreciation in the value of the Delray 20%. 

Initially, we consider whether the trial court correctly interpreted the 

agreement. In Kaaa, the Florida Supreme Court held that “the passive 

appreciation of a nonmarital asset, such as [a] marital home, is properly 

considered a marital asset where marital funds or the efforts of either party 

contributed to the appreciation.” 58 So. 3d at 870. Accordingly, this court 

has held that “[w]here a prenuptial agreement does not address the right 

to enhanced value of a non-marital asset, that value is subject to equitable 

distribution.” Weymouth v. Weymouth, 87 So. 3d 30, 34 (Fla. 4th DCA 

2012). 

In Weymouth, the wife agreed in a prenuptial agreement to “remise, 

release and quit claim all right, title and interest she might have . . . to any 

property owned [by the husband] prior to marriage . . . .” Id. at 32 

(emphasis added). Conversely, the prenuptial provided that “all ‘property 

acquired by either of them during the marriage . . .’ is marital property.” 

Id. (emphasis added). This court affirmed the trial court’s determination 

“that the passive appreciation of the [marital] home [which the husband 

owned prior to the marriage] was marital property subject to equitable 

distribution” because the “boilerplate reference to a ‘quit claim’ . . . referred 

to the wife’s waiving her interest in the property at the time the agreement 

was entered into” and “does not mean that the agreement governed 

enhancement value.” Id. at 35.

1 The wife also argues that the successor trial judge erred in not applying the 

initial trial judge’s findings of fact and conclusions of law regarding the agreement 

because “a successor judge may not review, modify, or reverse, upon the merits, 

on the same facts, the final orders of his predecessor, absent mistake or fraud.” 

Burdick v. Burdick, 399 So. 2d 410, 412-13 (Fla. 3d DCA 1981) (emphasis added). 

However, this argument is without merit for multiple reasons. First, it appears 

that the successor trial judge did, in fact, adopt the same interpretation of the 

agreement as the initial trial judge. Second, even if the successor trial judge’s 

interpretation was different, the initial trial judge’s orders regarding the 

agreement were interlocutory in nature and subject to review by the successor 

judge. See Sell v. Sell, 870 So. 2d 833, 833-34 (Fla. 3d DCA 2003). Thus, the 

successor trial judge was “free to revisit during the proceedings or at the final 

hearing” the findings of fact and conclusions of law made by the initial trial judge 

in the “order approving the prenuptial agreement” because said order was nonfinal. Id. at 834 (Cope, J., concurring).
6

In Hahamovitch v. Hahamovitch, 133 So. 3d 1008 (Fla. 4th DCA 2014), 

the prenuptial agreement contained multiple releases and waivers of 

interest by the wife and specifically addressed property acquired during 

the marriage. Specifically, the parties agreed to “keep and retain sole 

ownership, control, enjoyment and power of disposition with respect to all 

property, real, personal or mixed, now owned or hereby acquired by each of 

them respectively, free and clear of any claim by the other. . . .” Id. at 1012. 

Further, “each party agrees that neither will ever claim any interest in the 

other’s property and that the property of every kind, nature and description 

which either one has on the date of the marriage will remain the respective 

separate property of each after said marriage . . . .” Id. Finally, a “title 

presumption” paragraph provided that if both parties’ names were on the 

title, each party would have equal interest in said property; but “[i]f [the 

husband] purchases, acquires, or otherwise obtains, property in his own 

name, then [the husband] shall be the sole owner of same.” Id. 

This court concluded “that under the plain language of the prenuptial 

agreement, the wife waived and released claims to property or assets 

owned by the husband at the time of the agreement, or acquired in his 

own name thereafter, including any enhancement in the value of such 

property.” Id. at 1015. “The language of the agreement was broad enough 

to waive the wife’s right to any asset titled in the husband’s name that was 

acquired during the marriage or that appreciated in value due to marital 

income or efforts during the marriage.” Id. This court explained:

[T]he title presumption provision in paragraph 17 of the 

prenuptial agreement . . . when read together with the other 

provisions of the prenuptial agreement, is sufficient to waive 

future enhancement of non-marital property, even if it is due 

to marital earnings or labor. To hold otherwise would read 

the title presumption provision out of the agreement. If the 

prenuptial agreement is to effectively shield the husband’s 

assets from the wife’s claims, it must also include any 

appreciation in value. 

Id. at 1015-16. This court also distinguished Weymouth because the 

prenuptial there “did not address the future acquisition of property,” and 

“specifically provided that property acquired by either spouse during the 

marriage . . . was marital property.” Id. at 1016. 

In the instant case, the parties’ agreement provides that “any and all 

real, personal, intangible, mixed, or other property owned by either party 

prior to the marriage, shall be and remain hereafter the separate property 
7

of such party, including other property purchased with the proceeds 

thereon and increases in value during the marriage or changes in form.” 

The parties agreed to “establish and maintain accounting procedures and 

records and bank accounts to preserve the separate character of their 

separate funds” and “not to commingle joint property with separate 

property.” Further, the wife agreed to waive “every interest, claim or 

demand of whatever kind or description, in law or in equity, that may 

accrue to her . . . in the event of separation or dissolution proceedings,” 

including “any right to any special equity, equitable distribution, or any 

other interest in any property of Husband of any kind whatsoever.” 

Finally, another paragraph contains a “title presumption” provision that 

provides that “any and all real, personal, intangible, mixed, or other 

property acquired during the marriage in the name of one party alone shall 

be and remain the separate property of the party in whose name title is 

taken,” and that “[e]ach party waives any claim of a special equity, 

equitable distribution, or any other claim against any such asset.” 

The provisions of the instant agreement and the prenuptial in 

Hahamovitch are strikingly similar. Specifically, both agreements contain 

a “title presumption” provision, a waiver to any interest in separate 

property owned by the other party prior to the marriage, and a waiver to 

any interest in property acquired by the other party and titled solely in 

that party’s name during the marriage. See 133 So. 3d at 1012. Thus, as 

in Hahamovitch, the instant agreement’s title presumption provision

“when read together with the other provisions of the prenuptial 

agreement,” including those related to property acquired during the 

marriage, “is sufficient to waive future enhancement of non-marital 

property, even if it is due to marital earnings or labor.” Id. at 1015. The

trial court’s interpretation to the contrary inappropriately reads those 

provisions “out of the agreement.” Id. at 1016. 

Even though the trial court’s interpretation of the agreement was 

erroneous, the trial court’s conclusion that the appreciation in the Delray 

20%, if any at all, was passive and not subject to equitable distribution, 

was correct and is supported by competent, substantial evidence.

2 Thus, 

2 Because this court also affirms the trial court’s final judgment on this 

alternative basis, there is no need to certify the same question raised in 

Hahamovitch and currently pending before the Florida Supreme Court. See 133 

So. 3d at 1017 (“Where a prenuptial agreement provides that neither spouse will 

ever claim any interest in the other’s property, states that each spouse shall be 

the sole owner of property purchased or acquired in his or her name, and 

contains language purporting to waive and release all rights and claims that a 

spouse may be entitled to as a result of the marriage, do such provisions serve to 
8

the wife’s argument that the trial court erred in failing to apply a Kaaa 

analysis and equitably distribute the Delray 20% is without merit.

In Kaaa, the Florida Supreme Court outlined a “fact-intensive” method 

“a trial court should employ as it determines whether a nonowner spouse 

is entitled to a share of the passive appreciation and calculates the proper 

allocation.” 58 So. 3d at 872. The method includes valuating the asset, 

determining whether there has been appreciation in that value during the 

marriage, and whether such appreciation was the result of active marital 

efforts thereby subjecting the appreciation to be equitably distributed. Id. 

Here, the trial court found that the husband’s purchase of the Delray 

20% was made “during the marriage of the parties with funds earned by 

the Husband and deposited in his separate bank account.” Additionally, 

the trial court found that “any change in the value of the [Delray 20%] 

stock is a result of the passive increase in the value of the underlying land 

and buildings at Delray Motors and not the result of the active marital 

efforts of the Husband.” These findings are supported by competent, 

substantial evidence in the record. The monies the husband used to pay 

off the loan that financed the purchase of the Delray 20% came from his 

separate checking account. That account, titled solely in his name, 

contained non-marital monies, pursuant to the agreement, consisting of

the husband’s trust distributions, salary, and commissions from Delray 

Motors. There was trial testimony that the portion of the business that 

the husband oversaw, new car sales, had decreased since 2002, when the 

husband purchased the Delray 20%. Additionally there was testimony

and evidence that any increase in the value of the land the dealership 

owned was the result of market factors and not due to any improvement 

or enhancement through marital efforts of the husband. 

The trial court was correct in concluding that the Delray 20% “is the 

separate non-marital property of the Husband and there is no appreciation 

in the value of that stock which would be subject to equitable distribution.” 

See Kaaa, 58 So. 3d at 872 (“If a separate asset is unencumbered and no 

marital funds are used to finance its acquisition, improvement, or 

maintenance, no portion of its value should ordinarily be included in the 

marital estate, absent improvements effected by marital labor.”) (citation 

omitted); Anson v. Anson, 772 So. 2d 52, 55 (Fla. 5th DCA 2000) (“Simply 

because a shareholder-spouse devotes work efforts to a corporation during 

waive a spouse’s right to any share of assets titled in the other spouse’s name, 

even if those assets were acquired during the marriage due to the parties’ marital 

efforts or appreciated in value during the marriage due to the parties’ marital 

efforts?”); Hahamovitch v. Hahamovitch, 145 So. 3d 824 (Fla. 2014). 
9

marriage should not transform the entire appreciation of the stock into a 

marital asset.”).

In summary, the trial court erred in its interpretation of the agreement 

by finding that the wife did not waive, and was entitled to, interest in any 

value or appreciation of the Delray 20% by virtue of the husband’s active 

marital efforts. However, in light of the fact that the trial court did not 

award the wife any interest in the Delray 20% upon finding it to be the 

husband’s “separate, non-marital property” and finding that there was no 

appreciation in value of the Delray 20% subject to equitable distribution, 

the final judgment may be affirmed pursuant to the tipsy coachman 

doctrine because the trial court “reache[d] the right result, but for the 

wrong reasons.” Advanced Chiropractic & Rehab. Ctr. Corp. v. United Auto. 

Ins. Co., 103 So. 3d 866, 869 (Fla. 4th DCA 2012) (citation omitted). 

Lastly, both parties appeal the trial court’s denial of their fees requests. 

The wife argues that the trial court erred in not awarding her fees in light 

of the great disparity between the net worth of the parties. A trial court’s 

ruling on attorneys’ fees in family law actions is reviewed for an abuse of 

discretion. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 

1980). “Any determination regarding an appropriate award of attorney’s 

fees in proceedings for dissolution of marriage, support, or child custody 

begins with section 61.16, Florida Statutes.” Rosen v. Rosen, 696 So. 2d 

697, 699 (Fla. 1997). “The purpose of this section is to ensure that both 

parties will have a similar ability to obtain competent legal counsel,” and 

“assure that one party is not limited in the type of representation he or she 

would receive because that party’s financial position is so inferior to that 

of the other party.” Id. (citation omitted). “It can be an abuse of discretion 

to grant only a partial attorney’s fee award where, on balance, there is a 

substantial disparity between the parties’ incomes. But the trial court 

cannot award fees based solely on disparity of income.” Fichtel v. Fichtel, 

141 So. 3d 593, 596 (Fla. 4th DCA 2014) (citation omitted). Furthermore, 

[i]t is critical that the trial court makes “specific findings of 

fact—either at the hearing or in the written judgment—

supporting its determination of entitlement to an award of 

attorney’s fees and the factors that justify the specific amount 

awarded. . . . [V]ague findings present an obstacle to 

meaningful appellate review.” 

Id. 

Here, the final judgment contains no findings of fact regarding the trial 

court’s fees determination. Because the trial court “did not address the 
10

substantial disparity between the parties’ incomes or provide specific 

factual findings” regarding its determination of the parties’ fees requests, 

this court is precluded from “any meaningful review of this issue.” Id.

The husband argues the trial court erred in not awarding him prevailing 

party fees for the first part of the trial pursuant to the agreement. Contrary 

to the wife’s argument, we find the husband’s request for fees was 

preserved. The Florida Supreme Court has held that “prenuptial 

agreement provisions awarding attorney’s fees and costs to the prevailing 

party in litigation regarding the validity and enforceability of a prenuptial 

agreement are enforceable.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 

1160 (Fla. 2005). Any such provisions control the issue of fees in a 

dissolution case over the parameters of section 61.16, subject to the 

limitations of disclosure outlined in Florida case law. See id. 

Here, the agreement provides that “[i]f either party brings an action or 

other proceeding to seeking to void this agreement, in whole or part, the 

party seeking to avoid the terms of this agreement shall be liable for all of 

the attorneys fees and costs incurred by the other party.” The wife sought 

to void the agreement during the first part of the proceedings. The trial 

court upheld the agreement, but denied both parties’ requests for 

prevailing party fees ruling that the husband prevailed on validity, but the 

wife prevailed on interpretation. The clear, unambiguous terms of the 

agreement do not provide for an award of fees to the party prevailing on 

the “interpretation” of the agreement. Thus, the husband, as the 

prevailing party in the wife’s action “seeking to void this agreement” was 

entitled to an award of fees against the wife who was “the party seeking to 

avoid the terms of this agreement.” Thus, the trial court erred in denying 

the husband’s request for fees in the first part of the proceedings. 

In summary, we reverse the trial court’s rulings on both parties’

requests for an award of attorneys’ fees. We remand with directions that 

the trial court award the husband prevailing party fees for services in 

connection with the first part of the proceedings regarding the validity of 

the agreement. We also remand for the trial court to reconsider the wife’s 

request for additional fees under section 61.16 and make findings of fact 

sufficient to permit review of the trial court’s decision.

Affirmed in part and reversed and remanded in part.

STEVENSON and FORST, JJ., concur. 

* * *
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Not final until disposition of timely filed motion for rehearing.