Minda v. Ponce, 2D05-3149.
| Decision Date | 20 January 2006 |
| Docket Number | No. 2D05-3149.,2D05-3149. |
| Citation | 918 So.2d 417 |
| Parties | Gary MINDA, Appellant, v. Theresa Noelle PONCE, Appellee. |
| Court | Florida District Court of Appeals |
Sarah M. Chaves, St. Petersburg, for Appellant.
No appearance for Appellee, Theresa Noelle Ponce.
Gary Minda (the Father) challenges three orders entered after a hearing on the parties' cross-motions for contempt. We reverse the order finding the Father to be in contempt because the amended supplemental final judgment did not clearly state that the Father could not send his five-year-old daughter on an airplane unaccompanied by either himself or Theresa Noelle Ponce (the Mother). In addition, because no motions other than the parties' cross-motions for contempt were pending before the trial court, we reverse the orders that purport to "clarify" the amended supplemental final judgment and that appoint a parenting facilitator because entry of these orders violated the Father's due process rights.
The proceedings between the Father and the Mother have been acrimonious, to say the least. At the time of the hearing at issue, the Father had primary residential custody of the parties' daughter, and the Mother had visitation rights. Because the Father lived primarily in New York and the Mother lived in Pinellas County, visitation had to be accomplished by flying the child back and forth between New York and Tampa. Due to bitter disputes concerning prior exchanges of custody, the court had entered an amended supplemental final judgment which stated in pertinent part:
All visitation exchanges shall take place at the Pinellas County Visitation Center in St. Petersburg or at a visitation center near the child's residence. In the event of an emergency or when the Visitation Center is not open, visitation exchanges shall take place at the airport police station. If there is an emergency (for example, a delayed flight) the parents shall notify each other as soon as possible. The Court anticipates that when the child reaches eight (8) years old she will be able to fly alone.
The final sentence of this provision forms the crux of the current dispute between the parties.
Following the child's visitation with the Mother over Easter weekend 2005, the Mother filed a motion seeking to hold the Father in contempt and contending that the Father had flown the child from New York to Tampa "alone" in violation of the amended supplemental final judgment. The Mother also contended that the Father had allowed the child to fly with an ear infection. By the time of the hearing on the contempt motion, the judge who had entered the amended supplemental final judgment had been transferred to another division. Therefore, the hearing was conducted before a successor judge. The dispute at the hearing centered on whether the Father's act of allowing the child to fly "alone" from New York to Florida violated the amended supplemental final judgment.
At the hearing on the motion for contempt, the Father testified that he was in Pinellas County just before the Easter weekend and that his wife was with the parties' child in New York. To get the child to Florida for visitation with the Mother, the Father's wife took the child to the airport in New York and placed her on a direct flight to Tampa. The Father testified that he paid for an escort service to accompany the child on the plane. The Father then met the child at the gate at the airport in Tampa and took her to the Mother. The Father testified that the child was not suffering from an ear infection when he met her at the airport. The Mother offered no evidence to contradict the Father's testimony as to how the child arrived in Tampa for visitation. As to the ear infection, the Mother testified only that she had to take the child to the doctor over the holiday weekend and that the doctor had diagnosed an ear infection during that visit. There was no testimony as to when this ear infection had begun.
The Father also testified to his understanding of the disputed sentence in the amended supplemental final judgment. He testified that he understood the disputed sentence to be the prior trial judge's understanding of when the airlines would allow a child to fly alone—not a prohibition on the child flying alone before that time if the airline would allow it. The Mother testified that she understood this sentence to mean that the child had to be accompanied by either the Father or the Mother when she flew between New York and Tampa until she was eight years old.
After the parties had argued at length over the language of the amended supplemental final judgment, the trial court asked, "Either of the attorneys have any objection to me contacting [the prior judge] now, to see what his intention was?" Both attorneys agreed. Subsequently, the successor judge stated during its ruling, "[The prior judge] has indicated through his answer to this Court today that it is not okay for the child to fly alone until age eight." Based on that communication, the successor judge stated that "the parties should have read and should have understood the supplemental final judgment as to visitation." The trial court then found the Father in willful contempt of this provision of the amended supplemental final judgment by "flying the child by herself from New York to Tampa for visitation while she had an ear infection."1
During the oral announcement of its ruling, the trial court also "clarified" the amended supplemental final judgment to read, "Neither party shall fly the child alone for visitation until she is eight (8) years old." In addition, the trial court sua sponte appointed a parenting facilitator to work with the parties. Prior to the hearing, neither party had sought clarification of the amended supplemental final judgment or appointment of a parenting facilitator, and the trial court gave no indication during the hearing that these issues might be addressed. Thus, the trial court's oral ruling was the first time either party had notice that the trial court was considering these actions, and neither party was given the opportunity to be heard on either issue before the court issued its ruling. The trial court subsequently reduced its oral rulings to written orders, which the Father now appeals.
Addressing first the order finding the Father in contempt, we initially note that it is not at all clear that the trial court's finding that the child was allowed to fly "by herself" is supported by the evidence. The Father testified that his wife took the child to the gate in New York, that he paid for an escort for the child while she was on the plane, and that he met the child at the gate in Tampa. Thus, the child was not truly "by herself" on this flight. Rather, she was simply accompanied by a paid escort rather than by her Father or Mother. Nothing in the amended supplemental final judgment requires that the child be accompanied by either the Father or Mother during flights to and from New York. Therefore, it does not appear that the trial court's finding that the Father allowed the child to fly "by herself" was supported by the evidence.
Even if the evidence supported the finding, however, we must nevertheless reverse the order finding the Father in contempt because he did not violate any specific provision of the amended supplemental final judgment. This case is quite similar to that of Cooley v. Moody, 884 So.2d 143 (Fla. 2d DCA 2004), which also dealt with custody exchanges between unmarried parents of a minor child. In that case, the trial court ordered the mother to "turn the child over to Mr. Moody" at 10 a.m. on August 11, 2003. Id. at 144. When the mother arrived with the child, Mr. Moody was not present, but his wife was. The mother refused to turn the child over since Mr. Moody was not there, and she subsequently refused to transfer custody at a different time and...
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