St. Onge v. Carriero, 1D17-3943

• Decision Date: 24 August 2018
• Docket Number: No. 1D17-3943,1D17-3943
• Citation: 252 So.3d 1280
• Parties: Paul D. ST. ONGE, Jr., Appellant, v. Melissa T. CARRIERO, Appellee.
• Court: Florida District Court of Appeals

252 So.3d 1280

Paul D. ST. ONGE, Jr., Appellant,

v.Melissa T. CARRIERO, Appellee.

No. 1D17-3943

District Court of Appeal of Florida, First District.

August 24, 2018

Kristina M. Cook, Navarre, for Appellant.

Clay B. Adkinson, DeFuniak Springs, for Appellee.

Per Curiam.

Paul D. St. Onge, Jr. (Former Husband) and Melissa T. Carriero (Former Wife) dissolved their marriage in 2013. Two minor children were born of the marriage. In 2014, Former Wife sought to modify the child support provision of the original final judgment of dissolution, which incorporated the parties' marital settlement agreement. In 2017, she moved to hold Former Husband in contempt of court for failing to pay one-half of the children's uncovered medical and dental expenses. In separate orders, the trial court modified Former Husband's child support obligation and held Former Husband in contempt. Former Husband appeals both orders. We affirm the modification of child support without further discussion. However, we reverse the contempt order.

A trial court may hold a party in contempt for intentionally failing to comply with a court order. Rojo v. Rojo , 84 So.3d 1259, 1261-62 (Fla. 3d DCA 2012). To support a contempt finding, the violated order must clearly and definitely make the party aware of the court's command. M.J. v. State , 202 So.3d 112, 113 (Fla. 5th DCA 2016). "[W]hen a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order." Keitel v. Keitel , 716 So.2d 842, 844 (Fla. 4th DCA 1998).

It is undisputed that the marital settlement agreement here requires Former Husband to pay one-half of the children's uncovered medical and dental expenses. However, Former Wife was seeking reimbursement for orthodontic expenses. The marital settlement agreement did not contain a definition of dental expenses. A portion of the agreement, which was left blank, specifically referred to medical, dental, and orthodontic expenses as three separate categories of expenses. And it was error for the trial court to find that payment for orthodontic expenses was implied in the requirement to pay for dental expenses.

Harris v. Hampton , 70 So.3d 747, 749 (Fla. 4th DCA 2011) (holding that an implied provision of a marital settlement agreement cannot serve as the basis for an order of contempt); Cooley v. Moody , 884 So.2d 143, 145 (Fla. 2d DCA 2004) ("[T]he law affords [the mother] the right to read the order as expressly written because the law also imposes upon the court the requirements to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt sanction."). Because the marital settlement agreement was silent on the payment of orthodontic expenses, the trial court erred in holding Former Husband in contempt for failing to pay these expenses.

Further, the contempt order is defective because the trial court did not make an affirmative finding that Former Husband had the present ability to pay the purge amount. See Fla. Fam. L. R. P. 12.615(e) ; Martyak v. Martyak , 873 So.2d 405, 407 (Fla. 4th DCA 2004) (holding that a trial court must make separate affirmative findings that the alleged...