       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           MELANIE DUFOUR,
                              Appellant,

                                     v.

                           ERNEST DAMIANI,
                               Appellee.

                              No. 4D17-656

                           [December 13, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 502013DR007707
XXXXNB.

  John F. Schutz and Ralph T. White of Schutz & White, LLP, West Palm
Beach, for appellant.

   No appearance for appellee.

KLINGENSMITH, J.

   Melanie Dufour (the Wife) appeals the trial court’s denial of her motion
for contempt filed in response to Ernest Damiani’s (the Husband) failure
to pay one-half of the mortgage on their marital home pursuant to a
marital settlement agreement incorporated into a final judgment of
dissolution. The Wife argues on appeal that her exclusive use and
possession of the home and the Husband’s obligation to pay one-half of
the mortgage was an aspect of child support, enforceable by the trial
court’s contempt powers. The Husband asserts that his obligation to pay
one-half of the mortgage ended when the Wife filed a tax return and
claimed her mother as a dependent. Based on the facts presented here,
we agree with the Wife and reverse the order denying the motion for
contempt.

    “A contempt order is reviewed for an abuse of discretion or fundamental
error.” Ford v. Ford, 153 So. 3d 315, 317 (Fla. 4th DCA 2014). However,
“[a]s with any contract, a marital settlement agreement is construed as a
matter of law.” Levitt v. Levitt, 699 So. 2d 755, 756 (Fla. 4th DCA 1997).
“As such, this court is on equal footing with the trial court as interpreter
of the written document.” Id. Therefore, if a trial court’s ruling is based
on the interpretation of a settlement agreement, then it is a decision of law
reviewable de novo. See Schwartz v. Greico, 901 So. 2d 297, 299 (Fla. 2d
DCA 2005). Similarly, conclusions of law by lower tribunals are reviewed
by this court on a de novo basis. Van v. Schmidt, 122 So. 3d 243, 259
(Fla. 2013) (holding that “an appellate court reviews the trial court’s
conclusions of law de novo”); see also Bluth v. Blake, 128 So. 3d 242, 245
(Fla. 4th DCA 2013) (“[T]o the extent the trial court’s orders were based on
conclusions of law, we apply de novo review.”).

   The parties’ marital settlement agreement stated, in relevant part:

      The Husband and Wife agree to jointly retain ownership of the
      marital home and be responsible until such time that the
      house is sold or the Wife refinances. The Wife shall have
      exclusive use and possession of the home and reside in the
      home with the two children only. In the event that anyone other
      than the Wife and the two children are residing in the home, the
      Husband’s responsibility to pay half the mortgage will be
      suspended without interfering with the Husband’s equitable
      interest in the property at the time of the sale or refinance as
      described below.

      The Husband and the Wife will equally share the mortgage on
      the marital property and reasonable maintenance costs, as
      agreed to by the parties, from time to time, until such time as
      they mutually agree to sell the property at a price mutually
      agreed upon.

(Emphasis added).

   The Wife testified before the general magistrate that she paid her
mother $6,800 to “help her live.” However, testimony from a third party
revealed that the mother had lived with that third party since March of
2013, and not with the Wife. The third party also testified that she did not
charge the mother rent, and that the mother paid for nothing other than
groceries, despite the Wife’s assertion to the contrary. The Husband
argued that his obligation to pay one-half of the mortgage on the marital
home ended once the Wife filed her 2014 tax return and claimed her
mother as a dependent. The Husband referred to an I.R.S. Publication in
his testimony and the magistrate interpreted his argument as follows:

      [A] parent can be claimed as a dependent and you as the Child
      can file as ‘Head of Household’ even if you[r] parent doesn’t

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      live with you. However, you must be able must provide more
      than half the cost of keeping up a home that was the main home
      for the entire year for your dependent parent.

(Emphasis added). 1

   The magistrate made various findings of fact, including that the Wife
and the children were the only occupants of the home dating back to
March 2013, approximately six months before the marital settlement
agreement was both signed and ratified by the trial court. The Wife failed
to prove that she provided more than half the cost of the mother’s living
expenses for an entire year, and was not entitled to claim the dependency
exemption. In essence, the magistrate found that the Wife had perpetrated
a fraud on the I.R.S. But, because the Wife claimed the exemption, the
Husband’s obligation to pay one-half of the mortgage on the marital home
ended as of January 1, 2014.

    The magistrate also concluded that even if the Husband’s obligation to
pay one-half of the mortgage had remained in effect, the Wife could not
seek civil contempt for non-payment of the mortgage. See Burke v. Burke,
336 So. 2d 1237, 1238 (Fla. 4th DCA 1976) (“[T]he contempt process may
not be utilized to enforce payments required under a property settlement
agreement, such payments being enforceable only as ordinary claims
between a creditor and a debtor.”); Filan v. Filan, 549 So. 2d 1105, 1105
(Fla. 4th DCA 1989) (“If an obligation is in the nature of settlement of
property rights as opposed to alimony, support or maintenance of one to
whom the duty is owed, the contempt power of the court cannot be
invoked.”). Therefore, the magistrate found that the Wife could, at best,
only receive a money judgment against the Husband for his unpaid portion
of the mortgage.

    After the Wife filed exceptions to the magistrate’s recommendations, the
trial court entered an order denying the motion for contempt. This appeal
followed.

   It is well settled that the enforcement of debts not involving support
through a motion for contempt violates the Florida Constitution’s provision
prohibiting imprisonment for debt. See Whelan v. Whelan, 736 So. 2d 732,
733-34 (Fla. 4th DCA 1999). However, there may be times where a former
spouse’s payment of certain debts may be deemed support, which allows

1 The wording of this excerpt from the record is similar to 26 U.S.C. § 152(d)
(2008), which defines “dependent” and lists the requirements for an individual to
be classified as a “qualifying relative.”

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for enforcement through contempt. See id. “Exclusive possession given
an ex-spouse and children of a marriage always constitutes an aspect of
child support in kind and sometimes also constitutes an aspect of alimony.
The requirement that the husband make the house related payments
similarly relates to child support and, perhaps, spousal support.” Sency
v. Sency, 478 So. 2d 432, 432 (Fla. 5th DCA 1985).

   Particularly instructive on this issue is the Fifth District’s decision in
Douglas v. Douglas, 616 So. 2d 574, 575 (Fla. 5th DCA 1993). There, the
parties entered into a marital settlement agreement containing a provision
that no unrelated male would reside in the house while the wife
maintained exclusive possession. Id. The court stated, “Although the
agreement is extremely poorly drafted, construction of the document as a
whole shows appellee’s mortgage obligations are in the nature of support,
most likely, child support.” Id. The court held that the husband could not
ignore his financial obligations based on the breach of such a provision,
and found that the trial court erred in discharging the obligation upon the
wife’s motion for contempt because the husband “filed no response to the
motion nor any other pleading seeking relief from the mortgage payment
obligation.” Id.

    “Exclusive possession given an ex-spouse and children of a marriage
always constitutes an aspect of child support in kind[.]” Sency, 478 So.
2d at 432; see also Arze v. Sandough-Arze, 789 So. 2d 1141, 1145 (Fla.
4th DCA 2001) (recognizing that an award of exclusive use and possession
of the marital home must serve a special purpose). In this case, the
agreement was unambiguous in its provision detailing the exclusive
possession of the marital home. It clearly stated that the Wife would reside
in the home with the children, and no one else. If another person resided
in the home after the ratification of the property settlement agreement,
then the Husband’s obligation to pay one-half of the mortgage would be
suspended. Therefore, the Husband’s obligation to pay one-half of the
mortgage on the marital home was an aspect of support. See Sency, 478
So. 2d at 432. When a party fails to fulfill a support obligation, a motion
for contempt is a proper remedy. See Whelan, 736 So. 2d at 732. Although
the magistrate concluded that the Wife falsely claimed her mother as a
dependent, nothing in the agreement provided that “perpetrating a fraud
on the I.R.S.” would allow the Husband to suspend his obligation to pay
one-half of the mortgage.

   We reverse the denial of the Wife’s motion for contempt and remand for
further proceedings in accordance with this opinion.

   Reversed and remanded.

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CIKLIN and CONNER, JJ., concur.
                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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