SCOTT ALAN ORTH v. MARCY ORTH ( 2022 )

Third District Court of Appeal
State of Florida
Opinion filed March 30, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-458
Lower Tribunal No. 12-3545
________________
Scott Alan Orth,
Appellant/Cross-Appellee,
vs.
Marcy Orth,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Marcia del
Rey, Judge.
Law Offices of Scott Alan Orth, P.A., and Scott Alan Orth and Eric
Salvatore Giunta (Hollywood), for appellant/cross-appellee.
Lorenzen Law, and Dirk Lorenzen, for appellee/cross-appellant.
Before LINDSEY, HENDON, and LOBREE, JJ.
HENDON, J.
This appeal relates to the enforceability and interpretation of a marital
settlement agreement (“MSA”)1 entered into between the parties, Scott
Alan Orth (“Former Husband” or “Scott”) and Marcy Orth (“Former Wife” or
“Marcy”). The Former Husband appeals, and the Former Wife cross-
appeals, from the January 5, 2021 Order Denying Exceptions and Cross-
Exceptions to the General Magistrate’s Report dated June 19, 2018, and
the General Magistrate’s Interim Report dated April 30, 2018, on the
Former Wife’s Motion to Enforce Final Judgment. We affirm in part,
reverse in part, and remand for entry of an order(s) on the parties'
exceptions consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In 2012, the Former Wife petitioned to dissolve her marriage to the
Former Husband. On July 31, 2012, the parties entered into the MSA,
which was filed in the lower tribunal in August 2012. On August 20, 2012,
the trial court entered a Final Judgment of Dissolution of Marriage (“Final
Judgment”), which provides as follows:
On August 20, 2012, this cause came before this Court
for a hearing on a Petition for Dissolution of Marriage. The
Court, having reviewed the file and heard the testimony, makes
these findings of fact and reaches these conclusions of law:
1
The MSA was titled “Separation and Settlement Agreement.”
2
1. The Court has jurisdiction over the subject matter and
the parties.
2. Both parties have been residents of the State of
Florida for more than six (6) months immediately
before the filing of the Petition for Dissolution of
Marriage.
3. The wife is not pregnant. The parties have no minor
children. The children of the marriage are all pursuing
College and University degrees and are well cared for.
4. The marriage between the parties is irretrievably
broken. Therefore, the marriage between Scott Alan
Orth and Marcy Le Vine Orth is dissolved, and the
parties are restored to the status of being single.
5. All marital property and marital debts have been
divided by a written agreement fully and voluntarily
executed by the parties with the assistance of
counsel.
6. The parties have entered into a Separation and
Settlement Agreement dated July 21, 2012, filed
under notice with the Court on August 8, 2012.
7. The Court reserves jurisdiction to enforce this
judgment.
DONE AND ORDERED in Chambers, Miami, Dade
County, Florida this 20th day of August 2012.
In November 2017, in the dissolution action, the Former Wife filed
the Motion to Enforce Final Judgment (“Motion to Enforce”), seeking to
enforce provisions in the MSA relating to the Former Husband’s obligation
to continue providing health insurance to the Former Wife and to maintain a
3
$500,000 life insurance policy naming the Former Wife as the beneficiary.
The relevant provisions in the MSA provide as follows:
6. MONTHLY SUPPORT AND DISTRIBUTION
....
e. The support obligation is not modifiable nor is it
terminable . . . .
....
h. Health Insurance for Marcy.
i. Scott shall continue to provide health insurance
under the current plan or a reasonably equivalent
and comparable plan for Marcy through his law
practice as long as same continues and is legally
obtainable.
ii. The obligation to provide insurance continues until
Marcy qualifies for Medicare (whether or not she
applies). In the event that Scott cannot or does not
provide this insurance, his support obligation will
be increased equal to the pro rata charge for
insurance applicable to Marcy as of July, 2012 or
the reasonable cost for Marcy to obtain cover,
whichever is greater.
....
8. LIFE INSURANCE
1. As security for support, Scott shall maintain life
insurance contracts/policies in the amount of
$500,000 and will designate Marcy as the primary
beneficiary of these policies for as long as he has a
support obligation. . . .
4
In December 2017, the trial court referred the Former Wife’s Motion
to Enforce to a general magistrate. That same month, the Former Husband
moved to strike the Motion to Enforce, asserting that there is “nothing in the
Final judgment to ‘enforce’” and that “the proper vehicle would appear to be
a petition to modify alimony.” The trial court denied the Former Husband’s
motion to strike.
The general magistrate conducted two hearings on the Former Wife’s
Motion to Enforce—the first on April 6, 2018, and the second on May 9,
2018. During these hearings, the testimony and evidence showed that
when the parties entered into the MSA in 2012, the Former Wife was
insured under a preferred provider organization plan (“PPO”) through the
Former Husband’s law office. The PPO plan had a $2,000 annual
deductible, and the Former Wife’s existing primary care physician, Dr.
Franco, who has treated her for at least twenty-two years, and her
preferred hospital, Aventura Hospital, were “in network” providers. The
Former Wife further testified that prior to entering into the MSA, the Former
Husband promised her that she could continue seeing Dr. Franco and go to
Aventura Hospital although this alleged promise was not included in the
MSA. Further, the Former Wife testified she began smoking cigarettes in
high school, and smoked during the majority of the marriage.
5
For insurance year 2016, the Former Husband changed plans, and
he paid the Former Wife’s insurance premium. As to insurance year 2017,
the parties entered into an agreement, which was entered “without
prejudice to insurance year 2018.” As part of this agreement, the Former
Wife agreed to accept from the Former Husband $1,280 per month,
although the policy she would purchase cost $1,480.03 per month and had
a greater deductible and higher co-pays. In return, the Former Husband
agreed to extend his required alimony payment by one month.
In October 2017, the Former Wife was notified that the 2018 premium
for her health insurance plan, which included Dr. Franco and Aventura
Hospital, would increase to $1,928.80 per month. She informed the Former
Husband about the increase, but they could not reach an agreement. At
that point, the Former Wife obtained a health insurance policy that costs
approximately $1,400 per month, includes Dr. Franco and Aventura
Hospital as “in-network” providers, and has a $6,000 annual deductible.
The Former Wife then filed the Motion to Enforce.
At the April 6, 2018 hearing before the general magistrate, the
Former Husband moved ore tenus for the Former Wife to submit a
“[m]arketplace application so that we have every tool we need to make the
decision here.” The general magistrate granted the request and directed
6
the Former Wife to conduct a search for health insurance policies that
included Dr. Franco but not Aventura Hospital.
On April 10, 2018, the Former Wife filed an affidavit as to her
marketplace search along with an exhibit. The exhibit reflected monthly
plan premiums ranging from $1,416 to $3,291.73, with varying deductibles.
On April 30, 2018, the general magistrate entered an Interim Report,
stating in part:
The question is not whether the Former Husband needs to pay
for the wife’s health insurance plan, he clearly does. The issue
is what is a “reasonable plan.”
The Magistrate found that when the Former Husband cancelled the Former
Wife’s policy through his office, she sought a replacement policy that listed
Dr. Franco and Aventura hospital. The general magistrate agreed that it is
reasonable for the Former Wife to limit insurance plans to those that accept
Dr. Franco. The general magistrate directed the Former Wife to conduct a
search on the healthcare marketplace for an insurance policy that includes
Dr. Franco, but not to limit her search to any particular hospital, and to
provide the results of the search to the Former Husband and the trial court.
On May 16, 2018, the trial court entered an order ratifying, approving, and
adopting the general magistrate’s Interim Order.
7
The general magistrate conducted a second hearing on May 9, 2018.
At the hearing, the Former Husband asserted that the marketplace quotes
were more expensive because the Former Wife is a smoker, and it is not
reasonable for her to charge him the increased rate due to her smoking
habit. The Former Husband provided information as to a health
maintenance organization (“HMO”) plan for a non-smoker that has a large
deductible but would allow the Former Wife to choose Dr. Franco as her
primary care physician, and once the large deductible is met, the HMO plan
would cover 100% of her claims. This HMO plan, including the amount of
the deductible, would be $14,910 for the year. The Former Husband then
proposed for the first time that there be an “escrow account” where he
would deposit $5,350 (the annual deductible of the HMO, $7,350, minus
$2,000) in an account that the Former Wife could use as needed once she
had paid $2,000 in deductibles. The Former Wife’s counsel disagreed with
the implementation of an “escrow account” as such an account is not
referenced in the MSA. The Former Wife’s counsel argued that the
majority of the plans in her marketplace exhibit are inferior to the plan that
was in place when the parties entered into the MSA, and that the MSA
provides for a plan that is “reasonably equivalent or comparable.”
8
On June 19, 2018, the general magistrate entered its report. The
report provides as follows:
There was no dispute as to whether the Former Husband
is required to pay towards the Former Wife’s health insurance
plan. The issue for 2018 and future years, is what is a
“reasonable plan.” . . . .
. . . . The Court agreed that it was reasonable to limit
insurance plans to those that accepted a physician with whom
an individual had a long-term affiliation . . . . Therefore the
Court directed the Former Wife to conduct a search through the
health care marketplace (at the Former Husband’s request) for
an insurance policy that included her physician but was not
limited as to which hospitals were in the plan.
....
At the continued hearing on May 9, 2018, the Court heard
additional testimony. The Former Husband indicated that he
objected to paying for a “smoker’s policy” although he
acknowledged that the Former Wife smoked during the
marriage. The Former Wife testified that she has smoked since
high school.
....
It was uncontested that the health insurance policy the
Former Wife had at the time of the dissolution had a $2,000
deductible.
The Court, premised on all the evidence received and on
the proffers and arguments presented, makes the following final
findings:
Health Insurance
1. The Former Wife shall be responsible for the first
$2,000 deductible under her insurance plan going forward and
the Former Husband shall be responsible for the balance out of
pocket medical expenses above $2,000.
9
2. To implement this, the Former Husband shall deposit,
from time to time as the policy changes, into an account owned
and controlled by the Former Wife a sum equal to the then
current plan deductible, less $2,000. This sum is determined
by taking the total deductible on the insurance policy and
subtracting the $2,000 which is the sum that the Former Wife is
responsible for paying. . . .
3. The use of this “Deductible Account” is limited to
medically necessary expenses that are uncovered by the
insurance plan, and have not been re-imbursed to the Former
Wife.
4. The Former Wife shall maintain all receipts, bills, and
invoices applicable to the deductible medical expenses. If any
dispute arises as to the propriety of the withdrawals, the Former
Husband may, within 30 days of receipt of the expended
amount, request an in-camera inspection by the Court of the
expenditures from the prior year. . . .
....
8. The Former Husband shall pay for 2018 (January
through December) the sum of $1,300 per month representing
his reasonable contribution towards monthly premiums for the
Former Wife’s health insurance policy for 2018. . . .
9. For future years the premium obligation to be paid by
the Former Husband to the Former Wife shall be arrived at by
averaging the cost of the non-smoking premium for a PPO or
EPO plan that includes Dr. Franco and the smoker premium for
a PPO or EPO plan that includes Dr. Franco. . . .
10. . . . . [The Former Husband has] an arrearage for
health insurance obligation of $2,461.79 [for insurance paid
December 15, 2017 through May 15, 2018]. . . .
....
10
Life Insurance
....
13. On February 14, 2018, the Former Husband added
the Former Wife as a beneficiary to ½ the death benefits of a
one million dollar life insurance policy he had taken out . . . .
....
16. The Former Husband shall maintain this life
insurance policy and is enjoined from removing the Former
Wife from her status as a 50% beneficiary of the $1,000,000 life
insurance policy as long as he has any support obligation to
her.
Attorney’s Fees
17. The Court finds that the Former Wife is entitled under
the terms of the parties’ agreement to an award of attorney’s
fees and costs.
The Former Husband filed exceptions, and the Former Wife filed
cross-exceptions to the general magistrate’s report dated June 19, 2018.
On January 5, 2021, the trial court entered an order denying the Former
Husband’s exceptions and the Former Wife’s cross-exceptions. The
Former Husband’s appeal, and the Former Wife’s cross-appeal, followed.
II. STANDARDS OF REVIEW
An appellate court reviews the trial court’s interpretation of a marital
settlement agreement de novo. Suess v. Suess, 289 So. 3d 525, 529 (Fla.
2d DCA 2019). An appellate court reviews a trial court’s ruling on a general
11
magistrate’s report de novo. Coriat v Coriat, 306 So. 3d 356, 358 (Fla. 3d
DCA 2020); Lopez v. Dep’t of Revenue, 201 So. 3d 119, 123-24 (Fla. 3d
DCA 2015).
III. ANALYSIS
A. Former Husband’s Appeal
1. General Magistrate’s Entertainment of Motion to Enforce
The Former Husband contends that the general magistrate erred as a
matter of law by entertaining the Former Wife’s Motion to Enforce Final
Judgment where the Final Judgment failed to expressly adopt or
incorporate the parties’ MSA, but merely referenced the MSA, noting that it
had been filed in the lower tribunal on a specific date, and reserved
jurisdiction to enforce the Final Judgment. Under the circumstances of this
case, we disagree.
The issue raised by the Former Husband pertains to the trial court’s
“continuing jurisdiction” to entertain in the divorce proceeding the Former
Wife’s Motion to Enforce Final Judgment. See Kozel v. Kozel, 302 So. 3d
939, 945 (Fla. 2d DCA 2019) (explaining that “[s]ubject matter jurisdiction
refers to a trial court’s constitutional or statutory authority to decide a class
of cases, while continuing jurisdiction refers to a trial court’s jurisdiction to
act in a case over which it had subject matter jurisdiction, but which it finally
12
resolved with the entry of a judgment”). In 2003, the Florida Supreme
Court in Paulucci v. General Dynamics Corp., 842 So. 2d 797 (Fla. 2003),
addressed the following rephrased question: “Does a court have
jurisdiction to enforce a settlement agreement where the court has either
incorporated the settlement agreement into a final judgment or approved
the settlement agreement by order and retained jurisdiction to enforce its
terms?” Id. at 799 (altered to lowercase). The Court answered the
question in the affirmative. Id. The Court stated that in Davidson v. Stringer,
147 So. 228, 229 (Fla. 1933), it recognized that “[w]hen a judgment or
decree has once been rendered, the court loses jurisdiction over the
subject-matter of the suit, other than to see that proper entry of judgment or
decree is made and that the rights determined and fixed by it are properly
enforced.” Paulucci, 842 So. 2d at 800-01 (quoting Davidson, 147 So. at
229 (emphasis added in Paulucci)). Further, the Court recognized in
Paulucci that in Levine, Middlebrooks, Mabie, Thomas, Mayers & Mitchell,
P.A. v. United States Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), it reaffirmed
that “a trial judge has the inherent power to do those things necessary to
enforce its order.” Paulucci, 842 So. 2d at 801 (quoting Levine,
Middlebrooks, 639 So. 2d at 608-09). The Paulucci Court held that,
consistent with Davidson and Levine, Middlebrooks,
13
when a court incorporates a settlement agreement into a final
judgment or approves a settlement agreement by order and
retains jurisdiction to enforce its terms, the court has the
jurisdiction to enforce the terms of the settlement agreement
even if the terms are outside the scope of the remedy sought in
the original pleadings. However, the extent of the court’s
continuing jurisdiction to enforce the terms of the settlement
agreement is circumscribed by the terms of that agreement.
Thus, if a party is claiming a breach of the agreement and is
seeking general damages not specified in the agreement, the
appropriate action would be to file a separate lawsuit.
Paulucci, 842 So. 2d at 803 (footnote omitted). The Supreme Court of
Florida also noted:
By enforcing a contract, it is assumed that the contract has
continuing validity and a party is ordered to comply with its
terms. A breach of contract action presupposes that the
contractual relationship is at an end because of a material
breach by one party and damages are sought by the non-
breaching party as a substitute for performance.
Paulucci, 842 So. 2d at 803 (approving of this particular language from
General Dynamics Corp. v. Paulucci, 797 So. 2d 18, 20 (Fla. 5th DCA
2001)).
In 2019, in Kozel v. Kozel, 302 So. 3d 939 (Fla. 2d DCA 2019), the
Second District Court of Appeal addressed a trial court’s continuing
jurisdiction to enforce a settlement agreement in a dissolution of marriage
proceeding following the entry of final judgment. The Second District noted
that the former wife’s filings were styled as petitions to enforce the
settlement agreement, but in reality, the filings “amounted to claims for
14
money damages for alleged breaches of contract.” Id. at 941. In reversing
the family court’s award of damages to the former wife, the Second District
held: “A trial court's continuing jurisdiction to enforce a settlement
agreement generally does not include jurisdiction to award damages for
breach that are not specified in the agreement, and the agreement here did
not specify the damages the former wife sought and the family court
awarded.” Id.
Here, the trial court did not explicitly “incorporate” the parties’ MSA
into the Final Judgment by either using such terms as “ratify,” “approve,” or
“adopt”; attaching the MSA as an exhibit to the Final Judgment; or ordering
the parties to obey the terms of the MSA. Therefore, it could be argued
that the trial court does not have continuing jurisdiction to enforce the MSA.
However, despite the lack of such explicit terms or language, the trial court
incorporated the MSA into the Final Judgment by specifically stating that it
reviewed the court file, and by referring to the MSA by the date it was
entered into by the parties and the date it was filed in the lower tribunal
docket. Further, the identified MSA provides in Paragraph 14(c) that the
“parties further agree that the Court will retain jurisdiction over the subject
matter and the parties hereto, for the purpose of enforcing the terms of this
Separation and Settlement Agreement.” The parties clearly anticipated that
15
the trial court would retain continuing jurisdiction to enforce the terms of the
MSA. Under these circumstances, the trial court incorporated the MSA into
the Final Judgment by reference, and therefore, it has continuing
jurisdiction to entertain the Former Wife’s Motion to Enforce Final
Judgment. Finally, there would have been no need for the trial court to
reserve jurisdiction to enforce the Final Judgment if the MSA was not
“incorporated” by reference into the Final Judgment because the only
provisions that could possibly need enforcement in the future were the
provisions relating to the MSA.
2. Motion to Enforce v. Motion to Modify under section 61.14
The Former Husband further argues that, rather than filing the Motion
to Enforce Final Judgment, the Former Wife should have filed a motion to
modify alimony under section 61.14 of the Florida Statutes. We disagree.
In family law cases, a trial court has continuing jurisdiction to modify
an alimony award under section 61.14 even when a settlement agreement
is not incorporated into the final judgment. See Frizzell v. Bartley, 372 So.
2d 1371, 1372 (Fla. 1979) (holding that section 61.14 allows a modification
of alimony although the parties’ agreement was not incorporated into the
divorce decree).
16
Here, the Former Wife was not seeking to modify alimony but to
enforce the health insurance provision (Paragraph 6.h.i-ii) of the MSA. The
health insurance provisions obligated the Former Husband to continue to
provide the Former Wife with health insurance through his law firm “under
the current plan or a reasonably equivalent and comparable plan.” The
MSA addressed the Former Husband’s obligation if such a health
insurance plan was no longer available through the Former Husband’s law
firm—the Former Husband’s “support obligation will be increased equal to
the pro rata charge for insurance applicable to Marcy as of July, 2012 or
the reasonable cost for Marcy to obtain cover, whichever is greater.”
(emphasis added). Contrary to the general magistrate’s interim report, the
required “cover” provided for in the MSA was “a reasonably equivalent and
comparable plan,” not merely a “reasonable” plan. Although the Former
Husband’s continued health insurance obligation to the Former Wife results
in an increase in the Former Husband’s support obligation, the Former Wife
is seeking to enforce the MSA, not to modify alimony.
3. Enforcement of MSA
a. Requiring the Former Husband to provide a plan
that includes as an “in network” provider the Former Wife’s
primary care physician
17
The Former Husband argues that the general magistrate unlawfully
modified the MSA by requiring the Former Husband to provide a health
insurance plan that included the Former Wife’s primary care physician as
an “in network” provider. We agree.
A marital settlement agreement is a contract, and its unambiguous
language is to be interpreted according to its plain meaning. See Lentz v.
Cmty. Bank of Fla., Inc., 189 So. 3d 882, 886 (Fla. 3d DCA 2016) (holding
that where provisions in a settlement agreement are unambiguous, a court
may not modify the terms); Rector v. Rector, 264 So. 3d 282, 286 (Fla. 2d
DCA 2019). “Although a trial court may be motivated to do what it
considers to be fair and equitable, it retains no jurisdiction to rewrite the
terms of a marital settlement agreement.” See Rocha v. Mendonca, 35 So.
3d 973, 976 (Fla. 3d DCA 2010).
Pursuant to the health insurance provision in the MSA, the Former
Husband was obligated to continue to provide health insurance to the
Former Wife under the plan that was in place in 2012 when the MSA was
entered into or “a reasonably equivalent and comparable plan.” Here,
when the MSA was entered into, the Former Wife’s health insurance was a
PPO plan with a $2,000 deductible, with various “in-network” providers.
The MSA does not require that the “reasonably equivalent and comparable
18
plan” must include the same “in network” providers or that the plan must
include Dr. Franco as an “in network” provider. The Former Wife
contended that the Former Husband allegedly promised her that she would
be able to continue seeing Dr. Franco. That alleged promise, however,
was not incorporated into the MSA. As such, the general magistrate
rewrote the terms of the MSA.
b. Requiring Former Husband to pay a portion of the
increased premium due to Former Wife’s smoking history
The Former Husband argues that the general magistrate unlawfully
modified the MSA by requiring him to pay a portion of the difference
between a policy for a person with a smoking history and a person without
a smoking history. We agree, but conclude that based on the language in
the MSA, the Former Husband is the one who is obligated to pay the entire
increased premium.
As a result of the Former Wife’s smoking history, her health insurance
is more costly. The trial court attempted to remedy the situation by
ordering that, “[f]or future years the premium obligation to be paid by the
Former Husband to the Former Wife shall be arrived at by averaging the
cost of the non-smoking premium for a PPO or EPO plan that includes Dr.
Franco and the smoker premium for a PPO or EPO plan that includes Dr.
Franco.” The Husband argues that by doing so, the trial court has modified
19
the MSA, and that he should not be obligated to pay any of the increased
premium due to the Former Wife’s smoking history. We agree with the
Former Husband’s argument that the general magistrate modified the MSA,
but based on the unambiguous language of the MSA, the Former Husband
is the one who is obligated to pay the entire increased premium, not the
Former Wife.
In its findings of fact, which were adopted by the trial court, the
general magistrate found that the Former Husband acknowledged that the
Former Wife was a smoker during the marriage, and she testified that she
has smoked since high school. Although not mentioned by the general
magistrate, the Husband’s testimony reflects that the Former Wife did not
continuously smoke throughout the marriage and apparently stopped for a
five-year period towards the end of the marriage. Nonetheless, it appears
that she smoked for considerable parts of the marriage. When the parties
entered into the MSA, the health insurance plan that the Former Wife was
insured under covered smokers. The general magistrate erred by rewriting
the terms of the MSA to accomplish what it believed was fair and equitable.
See Rocha, 35 So. 3d at 976 (“Although a trial court may be motivated to
do what it considers to be fair and equitable, it retains no jurisdiction to
rewrite the terms of a marital settlement agreement.”). The MSA requires
20
the Former Husband to provide a reasonably equivalent and comparable
health insurance plan, and the trial court was tasked with implementing the
remedy provided with the MSA—the amount of his “support obligation will
be increased equal to the pro rata charge for insurance applicable to Marcy
as of July, 2012 or the reasonable cost for Marcy to obtain cover,
whichever is greater.” (emphasis added). The general magistrate,
therefore, erred by rewriting the terms of the MSA by requiring the Former
Wife to pay for a portion of the increased premium due to her smoking
history.
c. Requiring Former Husband to maintain current life
insurance policy
The Former Husband argues that the general magistrate unlawfully
modified the MSA by providing that he must maintain his current life
insurance policy. We agree.
The Former Husband does not dispute that he is obligated to
maintain a life insurance policy in the amount of $500,000, naming the
Former Wife as the beneficiary until his support obligations end. However,
he contends that the general magistrate modified the terms of the MSA by
requiring that he maintain the current policy—"The Former Husband shall
maintain this life insurance policy and is enjoined from removing the
Former Wife from her status as a 50% beneficiary of the $1,000,000 life
21
insurance policy as long as he has any support obligation to her.”
(emphasis added). This argument has merit. The MSA merely requires
him to provide a $500,000 life insurance policy naming the Former Wife as
the primary beneficiary until his support obligations terminate. As long as
there are no gaps in coverage between the Former Husband’s current
policy and any future policy, the Former Husband has the option to obtain
another life insurance policy that conforms with his obligations under the
MSA.
4. Attorney’s fees
The Former Husband’s argument relating to the determination that
the Former Wife is entitled to attorney’s fees is not ripe for appellate review
because an order determining the amount of fees has not been entered.
See Garcia v. Valladares, 99 So. 3d 518, 518 (Fla. 3d DCA 2011) (holding
that because the attorney’s fees entitlement order “does not determine the
amount of such fees or costs, the order is a non-final, non-appealable
order”).
The remaining arguments raised by the Former Husband are either
moot as a result of our determination of the issue raised by the Former
Wife on cross-appeal and/or lack merit.
B. Former Wife’s Cross-Appeal—“Deductible Account”
22
The Former Wife argues that the trial court modified the MSA by
requiring the parties to implement a Deductible Account where such an
account was not contemplated by the MSA or framed by any of the
pleadings. We agree.
At the second hearing, the Former Wife argued that a policy that is
reasonably equivalent and comparable to the policy she had in 2012 when
the MSA was entered into would cost $2,618.70 per month. The parties
acknowledged that in 2012 the Former Wife’s deductible was $2,000.
However, in an attempt to lower his monthly cost, the Former Husband
suggested that the Former Wife accept a plan with a much higher
deductible, and that he fund an account, which he referred to as an
“escrow” account, with the difference between the higher deductible and
$2,000, which funds can be utilized by the Former Wife after she reaches
the $2,000 deductible.
The general magistrate accepted the Former Husband’s suggestion,
and ordered the Former Husband to pay the Former Wife $1,300 per month
for a policy that has a $7,300 deductible. The general magistrate
calculated the $1,300 monthly cost based on the average cost of a policy
for a tobacco user and a non-tobacco user.
23
As stated earlier, the MSA anticipated the situation at hand and set
forth a remedy. The remedy did not include this “Deductible Account.”
Further, the creation of this account would also place certain burdens on
the Former Wife that were not contemplated by the MSA—in the event the
Former Husband challenged any of the Former Wife’s withdrawals, the
burden would be on the Former Wife, during an in-camera review, to
support her withdrawals. It appears that the general magistrate once again
improperly rewrote the parties’ MSA in an attempt to fashion a result that it
believed was fair and equitable. See Rocha, 35 So. 3d at 976; Suess, 289
So. 3d at 529-30 (holding that a court is powerless to rewrite a marital
settlement agreement “to make it more reasonable or advantageous for
one of the contracting parties”) (quoting Emergency Assocs. of Tampa,
P.A. v. Sassano, 664 So. 2d 1000, 1003 (Fla. 2d DCA 1995)); Ferguson v.
Ferguson, 54 So. 3d 553, 556 (Fla. 3d DCA 2011) (“A trial court is not
authorized to intervene to ameliorate a hardship that a promisor, such as
the former husband in this case, could have thus avoided.”); see also
Platinum Luxury Auctions, LLC v. Concierge Auctions, LLC, 227 So. 3d
685, 688 (Fla. 3d DCA 2017) (“An order enforcing a settlement agreement
must conform with the terms of the agreement and may not impose terms
24
that were not included in the agreement.”) (quoting Johnson v. Bezner, 910
So. 2d 398, 401 (Fla. 4th DCA 2005)).
IV. CONCLUSION
Based on the above analysis, we affirm in part and reverse in part,
the trial court’s order denying the Former Husband’s exceptions and the
Former Wife’s cross-exceptions to the general magistrate’s interim report
and report, and remand for the entry of an order or orders consistent with
this opinion. Further, on remand, if necessary, an evidentiary hearing may
be conducted to determine the amount of a “reasonably equivalent and
comparable plan.”
Affirmed in part; reversed in part; and remanded with instructions.
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