Wilcoxon v. Moller, 4D12–4076.

• Decision Date: 08 January 2014
• Docket Number: No. 4D12–4076.,4D12–4076.
• Citation: 132 So.3d 281
• Parties: Elizabeth WILCOXON f/k/a Elizabeth Moller, Appellant, v. Martin MOLLER, Appellee.
• Court: Florida District Court of Appeals

132 So.3d 281

Elizabeth WILCOXON f/k/a Elizabeth Moller, Appellant,

v.Martin MOLLER, Appellee.

No. 4D12–4076.

District Court of Appeal of Florida, Fourth District.

Jan. 8, 2014.

Hugo A. Rodriguez of Law Offices of H.A. Rodriguez, P.A., Fort Lauderdale, for appellant.

Mark A. Levy and Marissa J. Pullano of Brinkley Morgan, Fort Lauderdale, for appellee.

DAMOORGIAN, C.J.

Elizabeth Wilcoxon (“Former Wife”) appeals the trial court's post-dissolution order holding her in contempt, modifying a time-sharing agreement, and awarding attorney's fees in favor of her Former Husband, Martin Moller. We affirm in part and reverse in part.

Former Husband and Former Wife were married in 1998 and divorced in January of 2009. Their marriage produced two minor children. In conjunction with the dissolution of their marriage, the partiesentered into a Marital Settlement Agreement (“MSA”). The MSA incorporated a Time–Sharing Agreement (“TSA”) in which the parties agreed to 50/50 time-sharing. The parties also agreed that either parent could enroll the children in extracurricular activities “so long as it does not interfere with the other parent's time-sharing provided herein, unless mutually agreed to in writing or permitted by Court order.” The TSA also provided that whichever parent was with the children was responsible for transporting the children to their extracurricular activities. Former Husband and Former Wife later entered into an addendum to the MSA where they agreed to communicate regarding co-parenting responsibilities “utilizing Our Family Wizard ¹ or SMS text absent an emergency.”

In regard to healthcare, the MSA required Former Husband to maintain the children's hospital and medical insurance policies and Former Wife to maintain their dental and vision insurance policies. The parties agreed to share the costs of health coverage for the children equally. Additionally, the MSA provided for prevailing party fees in the event that either party had to seek court enforcement.

Former Husband's First Motion for Contempt

More than two years after their divorce was finalized, Former Husband filed an “Expedited Motion to Enforce, for Contempt, and For Sanctions and Request for Special Set Hearing.” By that time, Former Wife was remarried and the children were insured at no additional cost under her new husband's employer-offered plan. In his motion, Former Husband asserted that Former Wife was “willfully and maliciously” non-compliant with the MSA in that she: 1) “abjectly refused to provide the Former Husband with vital health-related and health insurance-related information for the children” such as their health insurance cards; 2) terminated her subscription to Our Family Wizard; 3) failed to discuss and give reasonable consent for the children's extracurricular activities; and 4) allowed her current husband to “badmouth” Former Husband in front of the children.

A general magistrate heard Former Husband's motion on September 16, 2011. Based on the arguments and testimony presented, the magistrate found that: 1) Former Wife failed to maintain her subscription to Our Family Wizard; 2) Former Wife failed to provide Former Husband with insurance cards for the children; and 3) it was not in the best interest of the children to have Former Wife's current husband near Former Husband. Based on these findings, the magistrate recommended the following:

• “Former Wife shall have five (5) days from September 16, 2011 (September 22, 2011) to re-subscribe to OFW, and that the parties shall use this resource frequently and shall provide responses within 48 hours to all communications.”

• “The Former Wife shall have five (5) days from September 16, 2011 to provide Former Husband with insurance cards, provider book, and any other necessary information incident to the children's health and medical insurance.”

• “The Former Wife's current husband shall not be present anywhere that the Former Husband is, particularly in the presence of the children. In the event that there are events or activities of any sort involving the minor children, if the Former Husband is in attendance, the Former Wife's current husband shall not be.”

Despite the September 22, 2011 deadline for compliance imposed in the recommendation, the magistrate did not actually file her report and recommendation until October 18, 2011, and the court did not ratify it until November 15, 2011.

Former Husband's Second Motion for Contempt

On April 17, 2012, Former Husband filed “Former Husband's Motion to Enforce, for Contempt, and for Sanctions.” In this motion, Former Husband alleged that Former Wife ignored and violated the directives set forth in the court's November 15, 2011 order ratifying the magistrate's recommendations in the following manners: 1) Former Wife did not re-subscribe to Our Family Wizard on or before September 22, 2011; 2) Former Wife did not provide Former Husband with the children's health insurance identification cards until thirty-five days after the policy initiation; 3) Former Wife failed to prohibit her current husband from attending an event at the children's school which Former Husband also attended; 4) Former Wife “failed to allow the children to participate in several extracurricular and school related activities”; and 5) Former Wife failed to pay Former Husband her share of the children's health expenses. Based on this alleged behavior, Former Husband requested that the court hold Former Wife in contempt and impose “sanctions for her contempt.” As a sanction for contempt, Former Husband requested that “Former Wife's time-sharing be changed so that the minor children exercise time-sharing with Former Husband every Wednesday and Thursday overnight in order to ensure that the children attend all extracurricular activities and school related functions” as well as “all attorney's fees and costs incurred to prepare and prosecute this motion.”

The court heard Former Husband's second motion on August 3 and August 6, 2012. Former Husband testified that Former Wife refused to bring the children to certain extracurricular activities during her visitation time. With respect to Former Wife's current husband, Former Husband testified that the current husband attended two of the children's school events in violation of the court's order. Relating to health insurance, Former Husband testified that he was required to maintain the children's insurance through his employer under the MSA, but admitted that he was not able to do so “a couple years back” so Former Wife added the children to her current husband's employer's policy. Former Husband did not financially contribute to the costs of insurance through Former Wife's current husband. Former Husband testified that he recently had the opportunity to add the children back to his work policy, and asked the court to order Former Wife to pay half of the premium policies pursuant to the MSA.

Former Wife admitted that her current husband attended an event which Former Husband also attended, but maintained that she did not ask or encourage her current husband to attend. She made it clear to her current husband that he was not supposed to be anywhere near Former Husband, but explained: “There is no restraining order, all I can say is, [...] you are not supposed to be there ... How am I supposed to inhibit somebody from showing up?” She also testified that the extracurricular events missed by her children during her time-sharing were per their requests. She maintained that she never let dental and vision insurance for the children lapse. As far as her Our Family Wizard use, Former Wife testified that she used it from 2009 until 2011 when her subscription lapsed because it was too expensive for her to maintain. She re-subscribed after the court ordered her to and after a family member gave her money for her subscription.

The Court's Order

Following the hearing, the court entered an order finding Former Wife in contempt for failing to re-subscribe to Our Family Wizard before September 22, 2011 and for “permitting her current husband to be in the general area of the Former Husband while at the minor children's activities.” The court also found Former Wife in violation of the MSA “for having not used her best efforts to transport the children to their extracurricular activities.” As a sanction, the court modified the TSA by switching the days the parents had with the children, ordered Former Wife to cancel the children's health insurance policies through her current husband and pay Former Husband for health insurance, and awarded a money judgment in the amount of $10,442.50 to Former Husband for sanctions and attorney's fees. A portion of the award, $4,657.50, covered fees and costs incurred by Former Husband related to Former Wife's failure to attend her depositions. The order did not make any findings or conclusions regarding Former Wife's ability to pay the sanctions and attorney's fees.

We find numerous errors in the trial court's order.

The Contempt Ruling

“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). However, “ ‘[a] judge cannot base contempt upon noncompliance with something an order does not say.’ ” Id. (quoting Keitel v. Keitel, 716 So.2d 842, 845 (Fla. 4th DCA 1998)). Under such circumstances, the standard of review is de novo, not abuse of discretion. Id.

Generally, there are two types of contempt: civil and criminal. “[T]he purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). Thus, a party who is held in civil contempt can “purge” the contempt by doing as...