Higgins v. Higgins, 2D06-286.

• Decision Date: 15 December 2006
• Docket Number: No. 2D06-286.,2D06-286.
• Citation: 945 So.2d 593
• Parties: Laurie M. HIGGINS, Appellant, v. Samuel F. HIGGINS, Appellee.
• Court: Florida District Court of Appeals

Page 593

945 So.2d 593

Laurie M. HIGGINS, Appellant, v. Samuel F. HIGGINS, Appellee.

No. 2D06-286.

District Court of Appeal of Florida, Second District.

December 15, 2006.

Lisa P. Kirby of Lisa P. Kirby, P.A., Naples for Appellant.

James J. Zonas, Naples, for Appellee.

NORTHCUTT, Judge.

The marriage of Laurie and Samuel Higgins was dissolved in 1996. In this appeal, Ms. Higgins challenges two post-judgment orders entered on January 9, 2006. The first holds her in criminal contempt, while the second transfers custody of the parties' son from her to Mr. Higgins. We reverse both orders.

The parties' divorce judgment incorporated the Higginses' marital settlement agreement, which provided that their son's primary residence would be with his mother. The agreement also established reasonable visitation for the father. In November 2005, Mr. Higgins sent a letter to the circuit judge below, complaining that Ms. Higgins was interfering with his visitation. The letter did not reflect that it was also sent to Ms. Higgins.

The judge responded with a letter to Mr. Higgins explaining that the parties should attempt to solve the visitation problem and, if they could not, Mr. Higgins should set a hearing on the issue. The judge advised that if a hearing was necessary, and if he found that Ms. Higgins had violated Mr. Higgins's visitation rights, the judge might hold her in contempt of court. The judge sent a copy of this letter to Ms. Higgins. Ms. Higgins then wrote the judge to explain that she was moving with her son to North Florida. She attached a letter she had sent to Mr. Higgins discussing her plans to relocate.

Thereafter, Mr. Higgins again wrote to the judge, this time to voice his disapproval of his former wife's proposed move. Then, on December 28, 2005, he mailed Ms. Higgins a notice of a hearing scheduled for fifteen minutes on the morning of January 9, 2006. Mr. Higgins did not file a motion or petition seeking affirmative relief. The notice stated simply that the hearing was to address "[v]is[i]tation and d[ecis]ion-making in the upbringing of son Samuel."

Both parties appeared at the hearing pro se. The proceedings were unreported, but it is apparent that the hearing became heated. At some point, the court held Ms. Higgins in direct criminal contempt. This order, scribbled by hand during the hearing, is the first order challenged on appeal. The contempt order recites:

Respondent refused after repeated warnings to stop interrupting other side and court. She stated that she was not following court orders of 1998 and would move anyway. Denied father visitation because of her beliefs without court hearing or consulting father.

After repeated warnings mother was placed in direct contempt.

Testimony as to [her] denial of visitation to husband based on her beliefs[,] it[']s not in son's best interest. She [relocated] to Lake City Fl. without consent of husband or court order.

....

He has been denied all effective visitation with son. Wife has no[w] [relocated] w/o agreement of husband or pre-noticing him. She moved to Lake City with son.¹

At the bottom of the order, the judge wrote: "Sentenced to jail for six months[,] but to be brought back to court after other hearings are completed." Ms. Higgins was then taken into custody and removed from the courtroom.

Sometime later that day the judge had Ms. Higgins brought back before him. At that time, the judge ordered the parties to proceed directly to the office of the circuit mediation program to mediate their differences. Later in the day, the judge signed an odd document. It is entitled "Order" and at its foot is the handwritten notation "so ordered by Franklin Baker, Circuit Judge." Yet the first paragraph of the order states "[p]ursuant to the Notice of Mediation Conference in the Matter, on the 9th day of January 2006, the parties have agreed to the following...." Both Mr. and Ms. Higgins signed the order, as did someone identified as the "Mediator[,] Preparer of Order of Court." This order transferred custody of the Higginses' son to Mr. Higgins, and it is the second order challenged in this appeal. Ms. Higgins contends the document is an order, while Mr. Higgins argues it is merely an agreement between the parties that the court approved.

The Contempt Order

In reviewing the contempt order we are mindful that a court may summarily punish for direct criminal contempt if the contemptuous conduct is committed in the court's presence. Fla. R.Crim. P. 3.830. However, the record must contain evidence that the court complied with the procedures mandated in rule 3.830.² Therefore, the court must ensure that a record of the contempt proceeding "is made and preserved in such a manner that it can be transcribed as needed." Fla. R.Crim. P. 3.721. The circuit court's failure to do so in this case requires us to reverse the contempt order. See Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991).

Beyond this, the contempt order itself reflects that two of its three bases were not punishable as direct criminal contempt. Ms. Higgins's behavior during the hearing—committed, as it was, in the judge's presence—might have supported a finding of direct criminal contempt. But her alleged interference with Mr. Higgins's visitation and her unilateral relocation necessarily took place outside the judge's presence. As such, they could be punished, if at all, only as indirect contempt. In that case, the judge would have been required to comply with the procedures set forth in Florida Rule of Criminal Procedure 3.840. Those procedures were not followed in this case, requiring reversal for that reason as well. Hagerman v. Hagerman, 751 So.2d 152, 153 (Fla. 2d DCA 2000).

Finally, the record affirmatively disproves the circuit judge's finding that Ms. Higgins's relocation was prohibited by the "orders of 1998." The circuit court docket reflects that two orders were entered in the Higginses' case that year. One was a support order in a child support enforcement action brought against Mr. Higgins by the Department of Revenue, and the other granted the Department's motion to consolidate the dissolution case with the support action. Neither order imposed any obligation whatever on Ms. Higgins; certainly, the orders did not prohibit her relocation with the parties' son. Prior to 1998, the only order entered in the Higginses' case was the final judgment of dissolution of marriage. That judgment did not prohibit relocation. To the contrary, it adopted and approved the Higginses' marital settlement agreement, which provided that "[e]ach party may reside at the place he or she may select."

For the foregoing reasons, we reverse the order of criminal contempt.

The Child Custody Modification

The child custody modification must be reversed, as well. Ms. Higgins contends the order was procedurally and substantively defective because it modified the custody provisions of the final judgment when there had been no petition for that relief and it was outside the scope of the noticed purpose of the hearing. See Smith v. Smith, 927 So.2d 118, 120 (Fla. 2d DCA 2006) (stating that a judgment based on an issue not framed by the pleadings or not noticed for hearing implicates due process concerns and cannot stand); Burckle v. Burckle, 915 So.2d 747, 749 (Fla. 2d DCA 2005); Pelliccia v. Arce, 867 So.2d 619, 620-21 (Fla. 2d DCA 2004). Substantively, the order contained no analysis of any substantial change in circumstances that would justify modification of custody. See Wade v. Hirschman, 903 So.2d 928, 932-33 (Fla.2005). Indeed, the order would be reversible for those reasons if it was intended to reflect the judge's determination that the best interests of the parties' child...