CAROLE WIENER, APPELLANT,
v.
HARVEY WIENER, APPELLEE
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In a post-divorce contempt proceeding, an ex-wife sought to enforce a property settlement agreement requiring her ex-husband to maintain medical insurance coverage. The trial court denied her motion for a rule to show cause, finding the husband incapable of compliance because the insurance company had cancelled her coverage due to her changed marital status, and she subsequently became uninsurable. The appellate court affirmed, holding that a party cannot be held in contempt for failing to comply with an order when compliance is impossible.
A party cannot be held in contempt for violating a decree when compliance is impossible. Here, the husband was not responsible for the insurance company's cancellation of the wife's coverage, and at the time of the hearing, he could not obtain similar coverage because the wife had become uninsurable due to her back condition.
“The basic support for the order refusing to initiate contempt proceedings against the husband is found in the record to the effect that the husband was incapable of complying with the decree.”
Establishes the core principle that contempt cannot be imposed when compliance is impossible
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In a post decretal proceeding a divorced wife sought to enforce by contempt the terms of a property settlement agreement which had been incorporated in the final decree of divorce. The trial court denied the wife’s motion for rule to show cause. She appeals. We affirm.
The husband had agreed to maintain certain medical insurance coverage for the wife. After divorce the coverage for the wife was cancelled by the insurance company because of the change in her marital status. Neither of the parties, as they were privileged to do, made timely application to convert the policy to cover the wife in her new single status. There*722after the wife suffered severe back complaints and underwent hospitalization and surgery. She incurred considerable medical expense and became uninsurable as concerns her back condition.
With this background the trial court addressed itself to the terms of the settlement agreement and construed it to the end that the husband was not responsible and declined to issue the Rule To Show Cause. Without discussing the validity of the reasoning employed, we feel that the result reached by the trial court was correct.
The basic support for the order refusing to initiate contempt proceedings against the husband is found in the record to the effect that the husband was incapable of complying with the decree.1 The company cancelled the wife’s coverage existing at the time of the divorce and this was outside the power of the husband to prevent. At the time of the hearing it was impossible for him to obtain similar or equal coverage because of the uninsurability of the wife.
We note that there is pending in the trial court the wife’s petition to modify final decree and for supplemental relief. It is based upon material changes and circumstances such as the mentioned cancellation of the insurance policy, the wife’s illness and increased needs, and other matters. The adjudication of it may necessarily involve new and different criteria and considerations. Thus this opinion shall be without prejudice to that pending petition and we indicate no views as to its merits and handling. In order, however, to completely pave the way for an unfettered consideration of the wife’s pending petition we strike and expunge from the order appealed the language which the parties concede to be obiter dictum:
“ * * * In the absence of an agreement to the contrary, a divorce terminates a husband’s legal obligation for his wife’s medical necessities.”
See Clutter v. Clutter, Fla.App.1965, 171 So.2d 544 and Fisher v. Fisher, Fla.App.1967, 202 So.2d 868.
Finally, it appears that the wife’s prayer for an award of attorney fees was not considered, probably by reason of oversight. Upon remand it is requested that this issue be determined as provided by law.
The order appealed is
Affirmed.
CROSS and REED, JJ., concur.
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Citator
Cited By
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Haas v. City of Miami Beach, 218 So. 2d 171 (Fla. 1968)…Certiorari denied without opinion. 210 So. 2d 721.…
Authorities Cited
- In the Interest of S. L. T., 180 So. 2d 374 (Fla. 2d DCA 1965)
- State v. McLeod, 126 Fla. 229 (Fla. 1936)
- Yandell v. Yandell, 160 Fla. 164 (Fla. 1948)
- Clutter v. Clutter, 171 So. 2d 544 (Fla. 3d DCA 1965)
- Fisher v. Fisher, 202 So. 2d 868 (Fla. 4th DCA 1967)