         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-3943
                 _____________________________

PAUL D. ST. ONGE, JR.,

    Appellant,

    v.

MELISSA T. CARRIERO,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Holmes County.
Timothy Register, Judge.

                         August 24, 2018


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 contemnor has the ability to
pay the purge amount and the basis for such ability). Contrary to
Former Wife’s argument, the transcript of the final hearing, which

                                 2
shows that Former Husband arguably has the ability to pay the
purge amount, cannot substitute for the affirmative finding that
the contemnor has the ability the pay the purge. Jensen v. Jensen,
35 So. 3d 972 (Fla. 5th DCA 2010).

     We, therefore, affirm the order on child support and reverse
the order on contempt.

     AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS and ROWE, JJ., concur; WOLF, J., concurring with opinion.

                   _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


WOLF, J., concurring.

    I concur in the result in this case but write to emphasize the
importance of the wording of the settlement agreement in
determining whether the requirement to pay dental expenses is
specific enough to encompass orthodontic expenses.

     The common meaning of orthodontics is “a branch of dentistry
dealing with irregularities of the teeth . . . and their correction . . .
.” https://www.merriam-webster.com/dictionary/orthodontics (last
visited July 25, 2018) (emphasis added). If the agreement had not
created ambiguity, I would find that the requirement to pay
uncovered dental expenses is sufficiently clear to support a finding
of contempt for failing to pay orthodontic expenses. ∗



     ∗
      I would also note that this court’s holding only addresses the
clarity required for a finding of contempt and does not specifically
address whether the trial court can construe the settlement
agreement to cover orthodontic expenses.

                                   3
                _____________________________

Kristina M. Cook, Navarre, for Appellant.

Clay B. Adkinson, DeFuniak Springs, for Appellee.




                               4
