Wolf v. Wolf

• Decision Date: 18 March 2020
• Docket Number: Case No. 2D18-1645
• Citation: 296 So.3d 479
• Parties: Lisa L. WOLF, Appellant, v. Todd O. WOLF, Appellee.
• Court: Florida District Court of Appeals

296 So.3d 479

Lisa L. WOLF, Appellant,

v.Todd O. WOLF, Appellee.

Case No. 2D18-1645

District Court of Appeal of Florida, Second District.

Opinion filed March 18, 2020.

Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellant.

Felicia M. Williams of Fathers Rights Law, P.A., Tampa, for Appellee.

SILBERMAN, Judge.

In this postdissolution proceeding, Lisa L. Wolf (the Former Wife) appeals the trial court's final order entitled "Order Granting Former Husband's Second Motion for Contempt for Failure to Comply with Final Judgment and Parenting Plan and Order on Expedited Motion for Modification of Parenting Plan and Cease and Desist." The Former Wife raises four issues on appeal. We affirm without discussion the claimed due process violation. We write to address the remaining three issues and affirm in part, reverse in part, dismiss in part, and remand for further proceedings. We affirm the finding of contempt regarding the Former Wife's refusal to participate in the ordered family therapy and reverse the other two findings of contempt based on a lack of competent, substantial evidence. We also reverse the order to the extent that it improperly awarded make-up time-sharing and improperly modified the parties' Parenting Plan and remand for further proceedings. However, we affirm the order as it relates to the stipulations the parties made at the hearing. We dismiss the appeal to the extent that the order awards entitlement to attorney's fees but no amount to Todd O. Wolf (the Former Husband) on the contempt motion, as that issue is not ripe for review.

PROCEDURAL HISTORY

The parties entered into a Mediated Marital Settlement Agreement (MSA) and a Parenting Plan that were incorporated into the 2011 Final Judgment of Dissolution of Marriage (the Final Judgment). The parties' son was born on June 3, 2009. The Parenting Plan provided for shared parental responsibility with a graduated time-sharing arrangement for the Former Husband. At first the Former Husband was to have time-sharing twice a week, graduating to twice a week with one overnight, and beginning January 1, 2013, to twice a week with two overnights per week. The Parenting Plan further provided a schedule of holiday time-sharing.

The Former Husband contended that the Former Wife cut off all timesharing as of December 25, 2014, and that he had never had an overnight with his son. As a result, he filed a motion for contempt in August 2015. After unsuccessful mediation, he filed an amended motion for contempt in December 2015. After a hearing, the trial court entered an order in September 2016 on the amended motion for contempt (the 2016 Order) that specified that the parties and the child would use Dr. Kinsler for family therapy and that the parties would exchange the child around Dr. Kinsler's therapy schedule. The 2016 Order provided the Former Husband with two daytime time-sharing opportunities set around the therapy schedule and two overnights per week. The 2016 Order did not find the Former Wife to be in contempt of court.

On November 8, 2017, the Former Husband filed his second motion for contempt that is at issue here (the Contempt Motion), which alleged a failure to comply with the Final Judgment and Parenting Plan. On December 8, 2017, the Former Husband filed "Former Husband's Expedited Motion for Modification of Parenting Plan and Cease and Desist" (the Modification Motion). Both motions were heard on December 21, 2017.

At the time of the hearing, the child was eight years old. It appears that the child did not have a formal diagnosis of autism

, but there were signs that he was on the spectrum and needed further evaluation.¹ At the hearing, the parties' attorneys made significant factual assertions to the trial court on a variety of topics.

Later in the hearing, testimony was taken from the Former Husband and the Former Wife. The trial court then made oral findings as to contempt and stated: "It is the order of this Court that the mother be found in willful contempt, and as such, the Court will award custody of the child to the father immediately. The child shall reside with the father during the Christmas holidays beginning today and through the duration of the Christmas holidays until the weekend of Friday the 12th of January." From then on, the Former Wife was to have the child every other weekend.

In the written order entered on February 23, 2018 (the Order), the trial court found the Former Wife in willful contempt of the Final Judgment and the 2016 Order. The court found that the Former Husband was "entitled to 670.66 days of makeup time-sharing" and that it would be exercised as follows: "The minor child shall reside with the Former Husband from December 21, 2017 until the weekend of Friday, January 12, 2018. The Former Wife will pick the child up from school and return him to the Former Husband no later than Sunday, January 14, 2018 at 5:00 p.m." The trial court ordered that thereafter "[t]he Former Wife shall exercise time-sharing on alternate weekends from Friday after school until Sunday at 5:00 p.m. All other time-sharing shall be afforded to the Former Husband." The Former Wife now appeals the Order.

ANALYSIS

1. Modification of Parenting Plan and Time-sharing Schedule

The Former Wife contends that the trial court ordered a change of custody but failed to follow the statutory requirements for a custody change and failed to make the required findings.² In the Order, the trial court found the Former Wife in contempt and sanctioned her by modifying the Parenting Plan and time-sharing schedule. The trial court provided the Former Husband with make-up time-sharing that gave him exclusive time-sharing from December 21, 2017, until January 12, 2018, and then all time-sharing other than alternate weekends. It did not provide for a return to the previous time-sharing schedule once the make-up time-sharing was completed. It is unclear what the trial court intended, but the Former Wife argues that in effect the trial court permanently modified the Parenting Plan. Because the Order contains no end date for the Former Husband to have all time-sharing other than alternate weekends, it appears to effect a permanent change.

Section 61.13(4)(c)(1), Florida Statutes (2017), provides for the grant of make-up time-sharing as follows:

(c) When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, the court:

1. Shall, after calculating the amount of time-sharing improperly denied, award the parent denied time a sufficient amount of extra time-sharing to compensate for the timesharing missed, and such time-sharing shall be ordered as expeditiously as possible in a manner consistent with the best interests of the child and scheduled in a manner that is convenient for the parent deprived of time-sharing. In ordering any makeup time-sharing, the court shall schedule such time-sharing in a manner that is consistent with the best interests of the child or children and that is convenient for the nonoffending parent and at the expense of the noncompliant parent.

A violation of section 61.13(4) "may be punished by contempt of court or other remedies as the court deems appropriate." § 61.13(4)(d).

While contempt is an available remedy, it is inappropriate to sanction contempt with a transfer of custody. Hunter v. Hunter, 65 So. 3d 1213, 1214 (Fla. 2d DCA 2011) ; Burckle v. Burckle, 915 So. 2d 747, 749 (Fla. 2d DCA 2005). "In the absence of a finding that a change in custody is in the children's best interest, such a change may ‘penalize the children for the parent's contumacious conduct.’ " Hunter, 65 So. 3d at 1215 (quoting LaLoggia–VonHegel v. VonHegel, 732 So. 2d 1131, 1133 (Fla. 2d DCA 1999) ). More recently, this court stated that modification of time-sharing is prohibited "as a sanction for a parent's contempt of a custody order." Duncan v. Brickman, 233 So. 3d 477, 480 (Fla. 2d DCA 2017) ; see also Andre v. Abreu, 272 So. 3d 467, 467 (Fla. 3d DCA 2019) ; Lewis v. Juliano, 242 So. 3d 1146, 1148 (Fla. 4th DCA 2018).

However, section 61.13(4)(c)(6) also provides that the court "[m]ay, upon the request of the parent who did not violate the time-sharing schedule, modify the parenting plan if modification is in the best interests of the child." The courts have determined as follows:

Modification of timesharing in the context of a contempt proceeding is permissible only if: (1) the moving party has affirmatively alleged and proven a substantial change in circumstances; (2) the minor child's best interests require the modification; and (3) sufficient notice of the proposed modification was afforded to the nonmoving party.

Lewis, 242 So. 3d at 1148 (citing Duncan, 233 So. 3d at 480 n.4 ).

In Cecena v. Chambers, 938 So. 2d 646, 648 (Fla. 2d DCA 2006), this court considered the predecessor to section 61.13(4)(c)(6), section 61.13(4)(c)(5), Florida Statutes (2003), which "provide[d] authority for a court to modify custody if the custodial parent refuses to honor the noncustodial parent's visitation rights without proper cause and the modification is in the best interests of the child." This court determined that the substantial change of circumstances test set forth in Wade v. Hirschman, 903 So. 2d 928, 932 (Fla. 2005), applied to custody modifications made pursuant to section 61.13(4)(c)(5). Cecena, 938 So. 2d at 648. This court concluded as follows:

While section 61.13(4)(c)(5) does provide for the modification of custody as a sanction for a custodial parent's refusal to honor the non-custodial parent's visitation rights, it should be done only upon the filing of a petition for modification with proper notice and only as a last resort. Furthermore, the decision to modify custody under section 61.13(4)(c)(5) must also be in the child's best interests."

Id. at 649.

We further note, as the Former Wife points out in her brief, that the parties' Parenting Plan provides that "[a]ny substantial changes to this Parenting Plan must...