NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

KENNETH P. GERBER, ) ) ) Appellant, ) ) v. ) Case No. 2D14-1059 ) MARIA GERBER, ) ) ) Appellee. ) ) Opinion filed November 14, 2014.

A ppeal pursuant to Fla. R. App. 9.130 from the Circuit Court for Sarasota County; Robert W. McDonald, Jr., Judge. Kenneth P. Gerber, pro se. Susan J. Silverman, Sarasota; and Crystal C. Roland of Law Office of Crystal C. Roland, P.A., Miami, for Appellee.

BLACK, Judge. Kenneth Gerber (Former Husband) c hallenges the trial court's or der approving the magistrate's report and recommended order and the trial court's order- 2 - denying his motion to vacate . Although clarification of the pa rtial settlement agreement regarding objections to and reimbursement of the children's med ical expenses was appropriate, we conclude that the order of civil contempt was p remature. Further, since the magistrate's finding concerning the amount owed by the Form er Husband for the medical expenses is not supported by competent, substantial evi dence, it was approved by the trial court in error. The Former Husband's final assert ion that he lacked adequate

notice of the issues to be addres sed at the hearing is without merit. In May 2011, Maria Gerber (Former Wife) and the Former Husband entered into a partial settlement agreement (PSA). The PSA was ratified by the partial final judgment of dissolution entered in June 2011, and it prov ides in pertinent part that "[t]he parties shall equally (50%/50%) pay any reasonable and n ecessary medical . . . expenses" and that "[e]ach [party] shall pay directly or reimbu rse the other their portion of said expenses or object to same . . . within fifteen (15) da ys of the receipt of such notice." In February 2013, the trial court entered a second pa rtial final judgment related to the long distance parenting plan. Pursuant thereto, the For mer Wife was awarded sole decision-making authority over all medical decisions relat ed to the children. A few months later in June 2013, the Former Wife filed a motion for c ivil contempt and enforcement due to the Former Husband's failure to pay his shar e of the children's medical expenses. In support of her motion, the Former Wife al so presented her interpretation of the procedure for objections to medical expen ses. Following a hearing on the Former Wife's motion, the magistrate issued a report and recommended order acknow ledging that the Former Wife 's request for clarification of the PSA was necessary because "the procedure f or objections as to the- 3 - necessity and reasonableness of the medical treatment is not sp ecifically enumerated." The magistrate agreed with the Former Wife's interpretation tha t "if the Former Husband objects to any such expenses, he still must pay within the time frame, and thereafter, it is his burden to obtain an Order requiring the Former Wife to r e-pay him" provided the Former Husband presented "valid , competent evidence [that] the medical expenditure is unnecessary or unreasonable." The Former Husband asserts that the trial court effectively modified the PSA and partial final judgment of diss olution pursuant to its order approving and adopting the magistrate's recommended order . We disagree. The Former Wife did not receive a new benefit but merely a more pre cisely enumerated method of recovering the Former Husband's portion of the childr en's medical expenses. See Roque v. Paskow, 812 So. 2d 500, 503 (Fla. 4th DCA 2002) (h olding that "[a] modification seeks to change the status quo and seeks a new ben efit for one party"

while "a clarification does not seek to change rights and oblig ations but to make a judgment more clear and precise" ). Clarification of the PSA wa s appropriate because the PSA did not specifically enumerate the procedure for object ions. See Thompson v. Plowmaker, 681 So. 2d 727, 727-28 (Fla. 2d DCA 1996); Crespo v. Crespo, 28 So. 3d 125, 128 (Fla. 4th DCA 2010); Fussell v. Fussell, 778 So. 2d 51 7, 518-19 (Fla. 1st DCA 2001). Accordingly, we affirm the trial court's order as to th e clarification of the PSA. The Former Husband, a licensed attorney who practiced in Florid a for approximately fourteen years before relocating to Arizona, inte rpreted the PSA to require him only to object wit hin the fifteen-day window and no thing further. The Former Husband took full advantage of this interpretation, testifying at the hearing that despite his numerous objections to medical expenditures, he never once consulted with the- 4 - children's medical professionals or had other qualified profess ionals review the medical records. Instead, he disagreed with the nature of the procedur e or the manner in which it was carried out or was otherwise simply unwilling to pay. N ot surprisingly, the trial court found the Former Husband's interpretation to be unreasona ble. The trial court also expressed its displeasure with the Former Husband's conduc t in these proceedings, stressing that the Fo rmer Husband's actions create d frivolous and unnecessary litigation and delayed the payment of money to the Former Wife for the benefit of the children. We agree. Despite the Former Husband's reproachable conduct, however, we are constrained to hold that the finding of civil contempt is prema ture because the PSA is not sufficiently clear in its directive regarding objections to medical expenditures. See Thompson, 681 So. 2d at 728 ("An order that is indefinite or am biguous may not be enforced by contempt." (citing Loury v. Loury, 431 So. 2d 701 ( Fla. 2d DCA 1983))).

We must also reverse the orders to the extent that the Former H usband was required to reimburse the Former Wife $851.37 for the children's medical ex penses because this finding was not supported by competent, substantial evidence. It appears the magistrate relied on the medical records and receipts attached to the Former Wife's motion as support of this finding. However, "[d]ocuments attac hed as exhibits to a motion are not evidence." Waliagha v. Kaiser, 989 So. 2d 660, 661 (Fla. 2d DCA 2008). These exhibits were not admitted into evidence at the hearing, and none of the testimony elicited at the hearing constituted competent, substa ntial evidence of the amount owed by the Former Husband to the Former Wife for his sh are of the children's medical expenses. Though we agree with the Former Husband that the trial court erred- 5 - in accepting the magistrate's finding regarding the amount owed , we do not agree that the Former Wife carries the burden of establishing that the exp enses are reasonable and necessary. As clarified by the trial court in adopting the magistrate's recommended order, it is the Former Husband's burden to demonstrate by comp etent, substantial evidence that the medical expenses are unreasonable and unneces sary. Accordingly, we reverse the trial court's orders to the extent that the

Former Husband was found to be in civil contempt. Though prema ture at this time, if the Former Husband fails to comply with the court's orders goin g forward his conduct may support a future contempt proceeding. We also reverse as t o the amount the Former Husband was ordered to pay the Former Wife for his share of the children's medical expenses and remand for further proceedings. Affirmed in part; reversed in part; remanded.

SILBERMAN and WALLACE, JJ., Concur.