DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KEITH WILLIAMS,

Appellant,

v.

PENELOPE WILLIAMS,

Appellee.

No. 4D17-2834

[July 11, 2018]

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

Beach County; Edward A. Garrison, Judge; L.T. Case No. 

502014DR003451XXXXMB.

Abigail Beebe of The Law Office of Abigail Beebe, P.A., West Palm Beach, 

for appellant.

Daniel J. Koleos of Koleos Rosenberg McMahon P.L., Fort Lauderdale, 

for appellee.

FORST, J.

Appellant Keith Williams appeals from the denial of his motion for 

enforcement and sanctions as to Appellee Penelope Williams’s failure to 

comply with a provision of their marital settlement agreement. Although 

the trial court found that Appellee had breached this provision, it denied 

the motion for enforcement based on its misunderstanding that it could 

not compel Appellee to comply with the term at issue. Accordingly, we 

reverse and remand for further proceedings.

Background

The parties’ marriage of twenty-five years was dissolved by a final 

judgment of dissolution which incorporated their marital settlement 

agreement. The relevant, contested provision of the agreement is found in 

paragraph 8, which discusses the equitable distribution of the marital 

home, and provides in pertinent part that “[o]n or before June 1, 2017, the

Wife shall make all reasonable efforts to refinance this real property . . 

. .” (emphasis added). 
2

In June of 2017, Appellant filed a motion to enforce Appellee’s 

compliance with paragraph 8, arguing that she had not made “all

reasonable efforts” to refinance prior to the June 1st deadline. At the 

hearing on the motion, Appellee acknowledged that she never applied to 

refinance the marital home. The trial court found that she “made no effort 

whatsoever to refinance,” thus breaching paragraph 8. However, the court

stated that it did not have the authority to compel Appellee’s performance—

“as equitable distribution, the law is clear that that’s not enforceable by

contempt”—and the motion to enforce was denied. 

Analysis

A marital settlement agreement is to be interpreted and is construed 

under a de novo review. Reilly v. Reilly, 94 So. 3d 693, 696 (Fla. 4th DCA 

2012). Florida law favors the settlement of family law disputes and courts 

will enforce them when possible. Spiegel v. H. Allen Holmes, Inc., 834 So. 

2d 295, 297 (Fla. 4th DCA 2002). 

When a court enters final judgment of dissolution and incorporates a

marriage settlement agreement by reference, the court retains jurisdiction 

to enforce the terms of the final judgment and settlement as necessary. 

Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003). Florida 

Family Law Rule 12.570 sets forth various methods to enforce a judgment, 

including compelling performance of a specific act. Id. This rule is limited 

by the Florida Constitution’s prohibition on jailing debtors. Art. I, §11, 

Fla. Const.; see also Riley v. Riley, 509 So. 2d 1366, 1369 (Fla. 5th DCA 

1987) (“[C]ontempt power is limited by [Florida’s Constitution] and other 

traditional limitations on the use of contempt powers where there are 

alternative adequate legal remedies.” (footnote omitted)). 

Equitable distribution of marital property is generally considered a debt 

owed to a former spouse with any payments being enforceable only as 

ordinary claims between a creditor and a debtor. See Simpson v. Simpson, 

68 So. 3d 958, 961 (Fla. 4th DCA 2011); Burke v. Burke, 336 So. 2d 1237, 

1238 (Fla. 4th DCA 1976). However, when equitable distribution requires 

the performance of an act, and not the payment of money, the trial court

can enforce the provision through contempt without running afoul of our 

constitution. See Burke, 336 So. 2d at 1238 (affirming a portion of the 

trial court’s contempt order where the former husband failed to execute 

and deliver certain documents which would release the former wife’s 

interest in a note and mortgage and transfer certain securities to the 

former wife—acts not involving the payment of money); Roth v. Roth, 973 

So. 2d 580, 592 (Fla. 2d DCA 2008) (similar); Riley, 509 So. 2d at 1369 

(affirming contempt order premised on former husband’s failure to 
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designate his former wife as the primary beneficiary of a life insurance 

policy, as required by the property settlement agreement).

Turning to the instant case, paragraph 8 required Appellee to make 

reasonable efforts to refinance the real property. She did not. As in the 

cases cited in the preceding paragraph, there was an agreement by one of 

the parties to perform an act. This agreement can and should be enforced 

pursuant to Florida Family Law Rule 12.570(c).1 

The trial court correctly found that Appellee breached the parties’

agreement. The court, however, erred in failing to further determine

whether Appellee’s failure to comply was willful and deliberate and not 

caused by an inability to comply. If the trial court on remand determines 

that Appellee’s failure was voluntary, then the trial court will be obligated 

to issue an order compelling Appellee to perform in accordance with the 

“reasonable efforts” provision set forth in paragraph 8. See Burke, 336 So. 

2d at 1238; Roth, 973 So. 2d at 592. 

Conclusion

We reverse the trial court’s denial of Appellant’s motion to enforce 

because paragraph 8 stated that Appellee “shall” do a specific act, she 

failed to do so, and the trial court had the power to enforce her compliance. 

Accordingly, we reverse and remand for further proceedings consistent 

with this opinion. 

Reversed and remanded.

DAMOORGIAN and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

 

1 Any argument that performance could not be compelled because the time to perform 

had lapsed is rejected because performing by June 1, 2017 was not material. See

Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1100 (Fla. 4th DCA 2012) (naming a date 

upon which an act should be performed does not in and of itself result in establishing 

that time is of the essence or an essential part of the agreement).