Stusch v. Jiruska

• Decision Date: 06 January 2016
• Docket Number: No. 4D14–4414.,4D14–4414.
• Citation: 188 So.3d 874
• Parties: Michael STUSCH, Appellant, v. The Matter of Jennifer K. JIRUSKA, Appellee.
• Court: Florida District Court of Appeals

188 So.3d 874

Michael STUSCH, Appellant,
v.
The Matter of Jennifer K. JIRUSKA, Appellee.

No. 4D14–4414.

District Court of Appeal of Florida, Fourth District.

Jan. 6, 2016.

Wendy J. Stein and Stephanie M. Michel of Keller Landsberg PA, Fort Lauderdale, for appellant.

Craig J. Trocino of Michael Gottlieb, PA, Fort Lauderdale, for appellee.

CIKLIN, C.J.

Appellant Michael Stusch appeals an order holding him in civil contempt for failure to pay child care expenses, guardian ad litem fees, and attorney's fees. Because we find that the trial court erred in conducting the contempt hearing in Stusch's absence, we reverse and remand for a new contempt hearing. We also write to address several mistakes included in the contempt order.¹

Factual and Procedural Background

Stusch ("the father"), a German citizen, and appellee Jennifer Jiruska ("the mother"), a United States citizen, are the parents of a minor child born in Spain in 2012. Approximately six months after the child's birth, the parties ended their romantic relationship and the mother moved to Florida with the child.

In July 2013, the Spanish court entered a final judgment determining paternity, child support, time sharing, and other issues between the parties. The judgment awarded primary custody of the child to the mother and requires the father to pay monthly support. Additionally, the father was required to pay seventy-five percent of "extraordinary expenses" "having a medical or pharmaceutical origin ... and those which, having an origin in the child's play or academic activity, were agreed to be undertaken or incurred by both parents, or which in default or absence of that would be [or were]² judicially authorized." The Spanish judgment further states that expenses "having an origin in the child's play or academic activity and which do not count for their being undertaken or incurred on the agreement of both parents or the substitutory judicial authorization" shall be paid entirely by whichever parent "determines that said expense(s) is (are) to be realized."

The mother registered the Spanish judgment in the Florida circuit court in October 2013. In April 2014, the Florida circuit court entered an order confirming the

188 So.3d 877

registration and finding that it had jurisdiction to "enforce and clarify" the Spanish judgment. The Florida court appointed a guardian ad litem and ordered the father to pay seventy-five percent of the guardian's initial fee. The court also required the father to stipulate to his ability to pay "allocated court ordered attorney's fees and costs in this matter, if any."

In May 2014, the mother filed a motion for contempt and for clarification of the father's obligation to pay child-related expenses. She asked the trial court to order the father to pay his share of medical expenses and all other "reasonable" child care expenses, to hold the father in contempt for his failure to pay, and to impose attorney's fees as a sanction for contempt.

The motion was originally noticed for hearing on August 29, 2014, but the court subsequently rescheduled the hearing to October 9, 2014. The father sent a letter to the Florida circuit court which was received on September 24, 2014. The father's letter stated in part:

I have to let you know that I'm not able to join the hearing on the 9th of October 2014 in person, because I just left yesterday the hospital with an intervertebral discs infection, have to go back to hospital on the 25th of September and I'm not able to fly in an airplane for at least 2 month [sic]. I will also attache [sic] the hospital and doctor statements. I can offer you to be available by phone on the 9th of October 2014, if you need to talk to me personally and my statements below are not sufficient enough to dismiss the motion.

The father's letterhead contained two telephone numbers, one of which was identified as a cell phone number, and an e-mail address. The father further stated in the letter that pursuant to the Spanish judgment, he is obligated to pay seventy-five percent of medical or academic expenses only if he agrees to incur them, and that only the Spanish court has jurisdiction to modify the Spanish judgment.

The court held the hearing as scheduled, without the father being present either in person or via telephone. The guardian ad litem informed the court that the father had not paid his portion of the guardian ad litem's initial fee. The mother testified that the father had never paid for any medical or academic expenses for the child and would not agree to pay for any costs incurred in the United States because he believed the child should be raised in Europe. In support of her motion for attorney's fees, the mother's attorney presented an affidavit and billing records dated immediately after the Spanish judgment was entered.

The Florida circuit court made findings on the record and later entered a written order.³ The court found the father in contempt for failing to pay seventy-five percent of medical and academic expenses in the amount of $5,283.35; seventy-five percent of the guardian ad litem's fee in the amount of $2,625.00; and attorney's fees and costs in the amount of $29,077.09.

The father subsequently retained Florida counsel and filed a timely motion for rehearing. The trial court denied the motion following a hearing.

Due Process Considerations ...