Judkins v. Dep’t of Revenue and Jose Briceno
Case No. 4D10-4579

We represented a mother in her appeal from the Department of Revenue’s child support order. The mother had sought an order requiring the father of her child to pay child support. Specifically, the mother’s application for child support enforcement sought financial contribution from the father for the child’s uncovered medical expenses. At the hearing, the mother introduced evidence that she paid over $10,000 in expenses due to the child’s severe asthma. The Department of Revenue order only awarded the mother $2,800 for this expense. Additionally, the hearing officer’s orally pronounced ruling stated that the mother was entitled to $26,368.00 in retroactive child support, but the written order erroneously stated that the mother was only entitled to $23,368.00.

On appeal, we argued that the Department had erred in failing to properly consider the child’s uncovered medical expenses and include those expenses in the child support calculation or order Briceno to pay them in accordance with his percentage of child support. We also argued that the written order should be amended to conform to the hearing officer’s oral pronouncement that awarded the mother $26,368.00 instead of $23,368.00. The Fourth District Court of Appeal agreed. The court reversed and remanded the award regarding medical expenses pursuant to section 61.30(8) Florida Statutes (2010), to provide for future uncovered expenses. The court also remanded for the lower tribunal to conform the final order to its oral pronouncement.

**[Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of a timely filed motion for rehearing.] **

Lustgarten v. Lustgarten, 4D09-4404
June 22, 2011

The parties entered into a settlement agreement that required the former husband, who is a physician, to pay former wife’s Medicare insurance premiums and medical expenses not covered by Medicare. Former wife later brought a motion for contempt, alleging that the former husband refused to pay for a medically necessary liver transplant. Former husband contended that the transplant was not medically necessary but was instead experimental, and that a less expensive treatment that Medicare covered had been recommended by former wife’s first physicians. The trial court granted former wife’s motion. The trial court found that the parties’ previous deletion of the phrase “reasonable and necessary” in the amended final judgment meant the former husband waived that requirement as to former wife’s procedure. The trial court found former husband willfully violated the amended final judgment by failing to pay for the transplant.

On appeal, the Fourth DCA agreed with former husband’s argument that former wife had to prove the transplant was reasonable and necessary. Relying upon McBride v. McBride, 637 So. 2d 938, 940-41 (Fla. 2d DCA 1994), the Court stated: “It is implicit within a final judgment of dissolution that medical expenses for which payment is sought must be reasonable and necessary.” The Court also agreed that the former husband had not waived the requirement. Despite these findings, the Court held the error harmless because former wife had provided substantial competent evidence the transplant was reasonable and necessary. However, the Court held the former husband’s violation was not willful because he had a good faith basis to question whether the transplant was reasonable and necessary based on the recommendation of the former wife’s first physicians. The Court remanded for the trial court to vacate the order of contempt and for an order requiring former husband to pay the medical expenses within thirty days.