SCOTT ALAN ORTH,
v.
MARCY ORTH,
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A trial court has continuing jurisdiction to enforce a marital settlement agreement when the agreement is incorporated by reference into the final judgment and the agreement itself provides for such jurisdiction, even if the judgment does not explicitly use terms such as "ratify," "approve," or "adopt." A court enforcing a settlement agreement may not rewrite its unambiguous terms to accomplish what it considers fair and equitable, and an order enforcing a settlement agreement must conform with the agreement's terms and may not impose terms not included in the agreement. The MSA required the Former Husband to provide a "reasonably equivalent and comparable" health insurance plan and, if such a plan was unavailable, to increase his support obligation by the pro rata charge for insurance or the reasonable cost for the Former Wife to obtain coverage, whichever is greater—meaning he must pay the full increased premium attributable to the Former Wife's smoking history.
[1] A trial court has continuing jurisdiction to enforce a marital settlement agreement when the agreement is incorporated by reference into the final judgment and the agreem…
[2] A court's continuing jurisdiction to enforce a settlement agreement is circumscribed by the terms of that agreement, and the court may not award damages for breach that a…
Previewing 2 of 10 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Establishes the rule that courts have continuing jurisdiction to enforce settlement agreements when properly incorporated, but only to the extent permitted by the agreement's own terms.
Previewing 1 of 4 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceScott and Marcy Orth entered into a marital settlement agreement on July 31, 2012, which was incorporated by reference into the Final Judgment of Diss…
The full statement of facts, procedural history, and disposition for this case are member content.
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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.
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 August20, 2012, the trial court entered a Final Judgment of Dissolution of Marriage (“Final Judgment”), which provides as follows: On August20, 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.”
3
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 July21, 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
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. . . .
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 May16, 2018, the trial court entered an order ratifying, approving, and adopting the general magistrate’s Interim Order.
8
The general magistrate conducted a second hearing on May9, 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.”
. . . . 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 May9, 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.
10
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 December15, 2017 through May15, 2018]. . . .
. . . .
. . . .
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 June19, 2018. On January5, 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
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
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 nonbreaching 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
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).
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
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
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
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”
23
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.
24 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
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (11 total)
- Levin v. United States Fire Ins. Co., 639 So. 2d 606 (Fla. 1994)
- Jeno F. Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797 (Fla. 2003)
- Emergency Assocs. OF Tampa, P.A. v. Joseph A. Sassano, D.O., 664 So. 2d 1000 (Fla. 2d DCA 1995)
- Davidson v. Stringer, 109 Fla. 238 (Fla. 1933)
- Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3d DCA 2011)
- Gen. Dynamics Corp. v. Jeno F. Paulucci and Lois Mai Paulucci, 797 So. 2d 18 (Fla. 5th DCA 2001)
- Garcia v. In re Valladares, 99 So. 3d 518 (Fla. 3d DCA 2011)
- Lentz v. Cmty. Bank OF Fla., Inc., 189 So. 3d 882 (Fla. 3d DCA 2016)
- Darby Elizabeth Suess v. Suess, 289 So. 3d 525 (Fla. 2d DCA 2019)
- The Dep't OF Child. & Families v. N.M., 201 So. 3d 119 (Fla. 3d DCA 2015)