Orth v. Orth
| Decision Date | 30 March 2022 |
| Docket Number | 3D21-458 |
| Citation | 338 So.3d 363 |
| Parties | Scott Alan ORTH, Appellant/Cross-Appellee, v. Marcy ORTH, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
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, Coral Gables, for appellee/cross-appellant.
Before LINDSEY, HENDON, and LOBREE, JJ.
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.
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:
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 $500,000 life insurance policy naming the Former Wife as the beneficiary. The relevant provisions in the MSA provide as follows:
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.
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 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.
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."
On June 19, 2018, the general magistrate entered its report. The report provides as follows:
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