        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      MICHELLE LONGARZO f/k/a
                        MICHELLE CASTILLO,
                             Appellant,

                                      v.

                            JESUS CASTILLO,
                                Appellee.

                               No. 4D15-951

                              [March 9, 2016]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    John     L.   Phillips,   Judge;   L.T.    Case    No.
502002DR004635XXXXDIFH.

  Robert J. Hauser of Pankauski Law Firm PLLC, West Palm Beach, for
appellant.

  Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for
appellee.

LEVINE, J.

   The former wife appeals an order dismissing her petition to modify
custody, timesharing, and child support. The dismissal was based on the
wife’s “unclean hands” in failing to purge a contempt order entered years
earlier. We find that the trial court erred in dismissing the petition without
holding an evidentiary hearing on the wife’s present ability to purge the
contempt. As such, we reverse.

   The parties divorced in 2002. In December 2010, the trial court found
the wife in contempt for failing to pay one-half of the children’s health
insurance premiums and uncovered medical expenses, as required by the
final judgment of dissolution.

   In June 2014, the wife filed a supplemental petition for modification of
custody, timesharing, and child support. The wife alleged that the
husband did not exercise all of his overnights with the children and sought
an adjustment of the parenting plan to reflect the actual timesharing
exercised by the husband. In addition, the wife sought child support. The
husband moved to dismiss the wife’s petition based on the doctrine of
unclean hands. He argued the wife failed to pay $125 each month in
arrearages for health insurance and uncovered medical expenses, as
ordered by the court in December 2010.

   During a hearing in January 2015, the wife admitted that she had not
paid the contempt purge, but maintained that her unclean hands were
immaterial because the children were entitled to support. The trial court
granted the husband’s motion and dismissed the petition. From this
order, the wife appeals.

   Generally, an abuse of discretion standard of review applies to a lower
court’s determination to apply the unclean hands doctrine. Wait v. Wait,
886 So. 2d 318, 318 (Fla. 4th DCA 2004). However, whether a trial court
correctly applied the correct legal rule is reviewed de novo. Mills Corp. v.
Amato, 72 So. 3d 814, 815 (Fla. 4th DCA 2011).

    “[T]he ‘clean hands’ doctrine can act to bar modification to a spouse
who is delinquent with support payments.” DePoorter v. DePoorter, 509
So. 2d 1141, 1145 (Fla. 1st DCA 1987). However, “an arrearage does not
per se require denial of a modification petition so long as respondent can
show that he or she was unable to comply with the previous support
order.” Blender v. Blender, 760 So. 2d 950, 952 (Fla. 4th DCA 1999).
Thus, where a spouse has the ability to pay an arrearage and does not do
so, “he is not in court with clean hands and in such case his petition
should not be considered on the merits until he has complied with the
former order by payment of the sums due thereunder.” Martin v. Martin,
256 So. 2d 553, 554 (Fla. 4th DCA 1972). See also Selige v. Selige, 190
So. 251 (Fla. 1939) (dismissing petition for modification where husband
failed to comply with a prior court order requiring payment of alimony and
attorney’s fees and it was shown that the husband had the ability to pay);
Jenkins v. Jenkins, 159 So. 3d 310, 311 (Fla. 2d DCA 2015) (“[I]f the party
in default fails to demonstrate his or her inability to comply with the prior
support order, the petition for modification should not be considered.”).

   In the instant case, the trial court summarily dismissed the wife’s
petition for modification without considering the wife’s present ability to
comply with the previous contempt order. Although the wife had the
ability to pay the arrearages when the contempt order was entered in
December 2010, that does not mean that she had the present ability to
pay the arrearages years later when she filed her petition for modification
in June 2014 or at the time of the hearing on the motion to dismiss in
January 2015.

                                     2
   Accordingly, we reverse and remand for the trial court to hold an
evidentiary hearing on the wife’s present ability to pay arrearages for
health insurance and uncovered medical expenses.            Only after an
evidentiary hearing on the wife’s present ability to pay can the trial court
determine, consistent with this opinion, the applicability of the unclean
hands doctrine to the wife’s petition to modify custody, timesharing, and
child support.

   Reversed and remanded for further proceedings consistent with this
opinion.

GROSS and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     3
