Opinion
No. 2D20-3172
08-25-2021
Mariela BRUNO, Appellant, v. Refugio MORENO, Appellee.
Darla K. Snead of Darla K. Snead, P.L., Lakeland, for Appellant. No appearance for Appellee.
Darla K. Snead of Darla K. Snead, P.L., Lakeland, for Appellant.
No appearance for Appellee.
SLEET, Judge. Mariela Bruno, the Mother, challenges the trial court's order granting a motion for civil contempt and enforcement of the final judgment of paternity filed by Refugio Moreno, the Father. In its order granting the motion, the trial court modified the time-sharing set forth in the paternity judgment, acknowledging that it was doing so "without a specific petition" requesting such a change. On appeal, the Mother argues that this was error. We agree but determine that the trial court did not err in finding the Mother in contempt. As such, we affirm the order on appeal in so far as it found the Mother in contempt for failing to adhere to the parenting plan implemented by the paternity judgment, but we reverse the trial court's modification of time-sharing.
On June 10, 2019, the trial court entered a final judgment of paternity, in which it noted that the parties had stipulated to the Father's paternity of E.M., the minor child. In that judgment, the trial court found that "[t]he parties stated that they have a cordial relationship when it comes to the visitation of the child." Accordingly, the court stated that it would not "mandate an order, but will enter the Parenting Plan which outlines the minimum amount of visitation." The trial court further ruled that "each party shall be entitled to know the whereabouts of the minor child when the child is with the other parent" and that "[w]hen the child is with one parent, the other parent shall have open and reasonable rights of telephonic communication with the child, reasonable being one phone call per day."
On September 8, 2020, the Father filed a motion for civil contempt/enforcement, alleging that the Mother had not allowed the Father to have time-sharing or communication with the child for three weeks. A hearing was held on the motion, and the trial court subsequently entered an order granting the Father's motion and making the following specific findings of fact:
The Mother failed to make the child available for visitation numerous times and failed to inform the Father as to the child's whereabouts for 3 weeks. The Mother also failed to answer any phone calls or text messages regarding the child. Furthermore, the Mother failed to come to the door when [the Hillsborough County Sheriff's Office] attempted to perform a welfare check on the child.
The trial court "view[ed] the lack of communication, essentially the hiding of the child, and the other flagrant violations of the previous court order to be an extreme change in circumstances." The court stated that it, "without a specific petition, is prepared to modify time share [sic] of the child due to the flagrant violations and change in circumstances" and changed the time-sharing schedule to a seven-day rotating schedule. (Emphasis added.)
The Mother first argues on appeal that the trial court erred in finding her in contempt because the final judgment of paternity was ambiguous as to the time-sharing schedule. We find no merit in this argument because the final judgment of paternity was clear that the Father should be given the minimum amount of time-sharing; that while the child was with one parent, the other parent was entitled to know where the child was; and that while the child was with one parent, the other parent was entitled to telephonically communicate with the child at least once per day. According to the trial court's findings in its contempt order, three weeks had passed during which the Mother did not allow the Father to visit or communicate telephonically with the child and failed to notify the Father of the child's whereabouts. The Mother does not challenge these factual findings on appeal and has not provided this court with a transcript of the hearing below. Accordingly, we accept these findings as true. See C.G. v. M.M. , 310 So. 3d 977, 980 n.1 (Fla. 2d DCA 2020) ("The lack of a transcript of the proceedings below requires us to accept the trial court's factual findings as true."). As such, the Mother did not comply with the provisions of the final judgment of paternity, and the trial court did not err in holding the Mother in civil contempt.
However, the trial court erred in fashioning its remedy. Section 61.13(4)(c)6, Florida Statutes (2020), states, "When a parent refuses to honor the time-sharing schedule in the parenting plan without proper cause, 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." By the plain language of the statute, this remedy must be sought by the parent who did not violate the time-sharing schedule and must take into consideration the best interests of the child. Neither requirement was satisfied in this case.
The Father's motion for civil contempt/enforcement was a preprinted form. Under the section addressing what relief was requested, the Father only checked the following lines: (a) "enforcing or compelling compliance with the prior order or judgment," (e) "requiring the other party to pay costs and fees in connection with this motion," (j) "issuing a writ of bodily attachment if the other party fails to appear at the hearing set on this motion," and (n) "awarding makeup time-sharing with" the minor child "per the discretion of the trial court." As such, the trial court awarded a remedy that the Father did not seek and that the Mother was not put on notice that she would have to defend against. See Taunton v. Tilton , 673 So. 2d 149, 149 (Fla. 5th DCA 1996) ("Following a hearing on a motion for clarification of visitation rights, the court modified the visitation schedule to substantially increase the father's summer and Christmas visitation. ... [W]e reverse because a request for modification was neither made nor noticed."); see also Burckle v. Burckle , 915 So. 2d 747, 749 (Fla. 2d DCA 2005) ("[W]hen a party is not properly put on notice that a change of custody is sought, due process concerns are implicated. ... [T]he mother's contempt motion did not request a change in custody or address the child's best interests. The motion failed to put the father on notice that custody was at issue, and it did not invoke the court's jurisdiction to consider a change in custody."); Pelliccia v. Arce , 867 So. 2d 619, 620 (Fla. 2d DCA 2004) ("The proceedings that resulted in the trial court's order that automatically changed custody were commenced not by a petition to modify custody but, rather, by Mr. Arce's filing a motion for contempt and other relief.... [D]ue process concerns [a]re implicated when a party [i]s not properly put on notice that a change of custody [i]s being sought."); LaLoggia-VonHegel v. VonHegel , 732 So. 2d 1131, 1133 (Fla. 2d DCA 1999) ("Without notice of a hearing ... on a motion to award temporary custody of the children to Mr. VonHegel, the trial court's jurisdiction to hear these issues was not invoked or perfected and could not serve as a basis for the trial court's order transferring custody.").
Additionally, the trial court's order does not address whether changing the time-sharing schedule and parenting plan is in the best interests of the child, as is required by section 61.13(4)(c) 6. See Burckle , 915 So. 2d at 749 ("[T]he mother's contempt motion did not .... address the child's best interests.... Moreover, the trial court did not evaluate the factors affecting the welfare and interests of the child as required by section 61.13(3), Florida Statutes (2003), and it did not make a determination of the child's best interests. Thus, we reverse the change in custody."); Pelliccia , 867 So. 2d at 620-21 ("[T]here is no indication that the child's best interests have been considered.... The record on appeal does not show that the change of custody was entered because it was in the best interests of the minor child to do so. Thus, ... it was error for the trial court to change the primary residential custody under the pleadings and facts of this case."); cf. LaLoggia-VonHegel , 732 So. 2d at 1133 ("[O]n the record before us, there is insufficient evidence to ground a finding that it would be in the children's best interest[s] to be placed in Mr. VonHegel's custody, even temporarily.").
Finally, we note that "the general purpose of an order finding civil contempt is to obtain compliance with a prior order" and that "changing child custody in such an order does not accomplish this goal." Pelliccia , 867 So. 2d at 620. In fact, not only does "[t]he sanction of changing custody [or time-sharing] ... not coerce compliance" but also "it may, in the absence of a finding that such a change is in the best interest[s] of the children, penalize the children for the parent's contumacious conduct." LaLoggia-VonHegel , 732 So. 2d at 1133.
In conclusion, although the record supports the trial court's finding of contempt for the Mother's failure to abide by the time-sharing terms of the final judgment of paternity, the court erred in changing the time-sharing schedule as a contempt sanction when the Father never sought such remedy and the child's best interests were not addressed. See Albert v. Rogers , 57 So. 3d 233, 236 (Fla. 4th DCA 2011) ("[T]he court erred in substantially modifying the visitation schedule in the order finding the mother in contempt, because that relief had not been properly requested by the father in any pleadings, and the issue of the children's best interests was never litigated."). Accordingly, we affirm the order in so far as it finds the Mother in contempt but reverse the modification of the time-sharing schedule and the trial court's direction that the parties provide updated financial affidavits and return for a hearing on modification of child support due to the change in time-sharing. We remand for further proceedings as to a proper remedy for the contempt finding, such as the award of makeup time-sharing sought by the Father in his contempt motion.
Affirmed in part, reversed in part, and remanded.
Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hardee County; David N. Horton, Acting Circuit Judge.
KHOUZAM and LABRIT, JJ., Concur.