Posted by Nydia Streets of Streets Law in Florida Child Custody

After the entry of a Florida parenting plan, when either or both parents fail to follow the plan, post-judgment litigation can occur. When a parent files a motion for contempt of a parenting plan, the court must examine whether or not there is competent, substantial evidence to support a finding of contempt. This was the issue in the case Wolf v. Wolf, 2D18-1645 (Fla. 2d DCA March 18, 2020).

At the time a final judgment of divorce was entered, the father was awarded a gradually increasing timesharing schedule that would eventually lead to two overnights per week plus holiday timesharing. The father eventually filed motions for contempt, alleging the mother was obstructing his timesharing. After a hearing, the court entered an order finding the mother in willful contempt of the final judgment. The father was awarded over 670 days of make-up timesharing. The order did not state that the timesharing would revert to the original parenting plan once these make-up days were completed. The mother appealed.

First, with regard to the make-up timesharing, the appellate court held “[W]e reverse the Order to the extent that it awarded make-up time-sharing and modified the Parenting Plan, arguably making a permanent change, without the necessary evidence and considerations of a substantial change of circumstances and the best interests of the child.”

As to contempt, the mother argued there was insufficient evidence to show she willfully denied timesharing to the father, that she obstructed the father’s access to the child by altering the school contact card, or that she refused to participate in court-ordered therapy. As to the timesharing, the evidence showed the parties were unable to agree on a meeting place for exchange of the child, and that the mother raised valid concerns about the child’s safety with regard to the father’s proposed meeting places. The court specifically held “The fact that the plan calls for a ‘mutually agreeable’ midpoint indicates that there was no one particular spot required for the exchange. The Former Husband's testimony indicates that the Former Wife sought to come up with a mutually agreeable public location at a nearby McDonald's. The Former Wife did not want to meet on the sidewalk because she was concerned with the child's safety as he had run out in the street before. The Former Husband refused and continued to wait on the sidewalk. We cannot say that the Former Wife's failure to appear at the exact geographical midpoint when she suggested other nearby public locations was a clear, willful violation of the Parenting Plan. Thus, we conclude that the Former Husband failed to present competent, substantial evidence that the Former Wife was in willful contempt on this basis.”

As to the school contact card, there was discussion at the trial court’s hearing that a notation had been added to the card which stated “call before releasing”. The mother testified she did not add that to the card, and the card itself was not entered into evidence. The father did not testify that he had tried and was unable to pick up the child, or about the card at all. Therefore, the appellate court concluded there was a lack of competent substantial evidence to hold the mother in contempt on this issue.

Finally, with regard to the therapy, the appellate court upheld the finding of contempt based on evidence that the father tried to see multiple therapists with the mother refusing to attend appointments. The mother’s appeal was dismissed as premature in relation to the attorneys’ fees ordered against her since it was a non-final, non-appealable order. Analysis of a Florida family law case depends heavily on the specific facts of the case. This is why it may be important to consult with a Miami family law attorney to understand all facets of your case.