Posted by Nydia Streets of Streets Law in Florida Divorce

The terms of a Florida marital settlement agreement will be enforced under contract law. The unambiguous terms of a contract are enforceable as written, therefore it is important that the right words are used to convey the intent of the parties. A court cannot rewrite the terms of a valid and enforceable marital settlement agreement. This was an issue in the case Orth v. Orth, 3D21-458 (Fla. 3d DCA March 30, 2022).

The parties entered a marital settlement agreement which required the former husband to maintain a health insurance policy for the former wife’s benefit. At the time the agreement was entered, the former wife had a history of being a smoker and had a policy that covered smokers. The agreement stated that if the policy in place at the time of the entry of the agreement was no longer available, the former husband would pay for another policy which was “reasonably equivalent and comparable”. The final judgment did not specifically ratify the agreement, but had language noting the agreement had been filed and that the court reserved jurisdiction to enforce the judgment.

The former wife later filed a motion to enforce the agreement, alleging the former husband was not meeting his obligation to provide health insurance and was not maintaining a life insurance policy for her benefit. After a hearing, the trial court entered an order requiring the former husband to pay for a health insurance plan that would allow the former wife to keep her primary physician. It also ordered that an escrow account be utilized in which the former husband would deposit money to cover expenses in excess of the deductible, and it ordered that the former husband’s responsibility for payment for a policy would be reduced in light of the former wife’s status as a smoker. Both parties appealed.

The former husband argued that the marital settlement agreement was not enforceable via the court because the final judgment did not explicitly adopt or ratify the agreement. The appellate court rejected this argument, holding “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 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.”

The court turned to the issue of requiring the former husband to obtain a policy that allowed the former wife to keep her preferred primary care physician. The appellate court found that this was improper because the terms of the agreement did not require this, and thus the trial court was rewriting the terms of the agreement. Therefore, this ruling was reversed. Next, the appellate court examined the ruling that required the former husband to only pay a portion of the increased premium that was due to the former wife’s status as a smoker. The court reversed this, holding “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.”

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