Nunes v. Nunes

112 So. 3d 696, 2013 WL 1890284, 2013 Fla. App. LEXIS 7368
CourtDistrict Court of Appeal of Florida
DecidedMay 8, 2013
DocketNo. 4D12-3854
StatusPublished
Cited by4 cases

This text of 112 So. 3d 696 (Nunes v. Nunes) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nunes v. Nunes, 112 So. 3d 696, 2013 WL 1890284, 2013 Fla. App. LEXIS 7368 (Fla. Ct. App. 2013).

Opinion

CIKLIN, J.

The appellant appeals an order adjudicating her in civil contempt of court for willful failure to follow a court-ordered time-sharing plan. The appellant argues that she had insufficient notice of the contempt hearing. She also asserts that the contempt order failed to include sufficient factual findings concerning the best interests of the parties’ minor child and the alleged willfulness of her noncompliance. The appellant did not preserve her objection as to the issue of notice and did not demonstrate that the trial court failed to make requisite factual determinations. Accordingly, we affirm.

Factual Background

Kara Nunes (“the mother”) and Alexander Nunes (“the father”) were married and had a child. In June 2010, the trial court entered a final judgment of dissolution of marriage which incorporated a marital settlement agreement (“the agreement”). The agreement provided that the mother could relocate outside Florida, and that if she did move outside Florida “the [father’s] time sharing shall consist of Spring Break ... and four consecutive weeks each summer.” The mother relocated to Texas with the child.

The father filed a motion for contempt on July 10, 2012. The motion alleged that the father had sent an e-mail to the mother with the dates for his four consecutive weeks during the summer of 2012 and that the “[mother] failed to make the child available for summer timesharing” with the father. The father requested that the mother be found in willful contempt and that he be awarded “makeup time-sharing” and attorneys’ fees.1

On August 13, 2012, the father’s attorney sent a notice of hearing to the mother in Texas, advising her that a contempt proceeding would be conducted on August 28. The first hearing was cancelled due to an unplanned courthouse closing during Tropical Storm Isaac.

On August 31, the father’s attorney sent a second notice of hearing to the mother, informing her that the rescheduled con[699]*699tempt hearing would be held on September 12. According to the mother, she did not learn of the rescheduled hearing until September 6. The mother claims that she sent an e-mail to the father’s counsel on September 11 that stated she could not attend the hearing.

On September 12, the trial court held the contempt hearing. The father was present with his attorney, but the mother did not appear. The parties did not provide a transcript of the hearing.

On September 21, the court entered an order finding the mother in civil contempt of court. The order set forth the provision of the marital settlement agreement that required the mother to make the child available for summer time-sharing. The order stated that the mother “willfully failed to comply” with the final judgment “through the [mother’s] own fault and neglect.” The order also stated the mother “is in willful contempt of court for deliberate failure and refusal to comply with the order of the court.” The contempt order made provisions for makeup time-sharing during the child’s break periods from school and ordered the mother to pay the father’s attorneys’ fees.

The mother filed a notice of appeal on October 22, 2012. After the mother filed her notice of appeal, she filed a motion to stay the order adjudicating her in contempt which the trial court denied. She then filed a motion for rehearing on the motion to stay the order adjudicating her in contempt.2

Analysis

The mother appeals the contempt order on several grounds: (1) she lacked sufficient notice of the contempt hearing, (2) the trial court failed to make sufficient findings regarding her willful noncompliance with the time-sharing plan, and (3) the trial court failed to consider the best interests of the child in setting the dates for the makeup time-sharing.

“ ‘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.’ ” Harris v. Hampton, 70 So.3d 747, 748 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005)).

Insufficient Notice

The record indicates that the second notice of hearing — made necessary because of the tropical storm — was delivered to the mother’s home twelve days before the day of the re-scheduled hearing. Taking the mother’s claims as true, she did not receive the notice until five days before the day of the hearing, and only three business days before the hearing (excluding the day she actually received the notice).3

[700]*700The mother failed to preserve any objection to the date of the re-scheduled hearing. “‘In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’ ” Sunset Harbour Condo. Ass’n. v. Robbins, 914 So.2d 925, 928 (Fla.2005) (quoting Tillman v. State, 471 So.2d 32, 85 (Fla.1985)). The record before us includes no pre-appeal motion for continuance, motion for rehearing, motion for relief from judgment or even a pro se note from the mother to the trial judge that alleged the mother had insufficient notice of the hearing.

Because the mother failed to preserve this issue in any discernable manner whatsoever and in the absence of fundamental error, we decline to review it further.

Noncompliance with the Time-Sharing Plan

The mother also contends that she could not be held in contempt because the dissolution order was insufficiently clear regarding her duties to arrange for the time-sharing. “When a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.” DeMello, 914 So.2d at 1093 (citation omitted). “A judge cannot base contempt upon noncompliance with something an order does not say. Under such circumstances, the standard of review is legal error, not abuse of discretion.” Harris, 70 So.3d at 748-49 (citations, alteration, and quotation marks omitted).

We determine that the time-sharing provision was clear in its dictates and left no doubt as to the mother’s responsibilities in that regard. The time-sharing provision laid out a specific procedure and timeline for the father to inform the mother of the summer time-sharing schedule and the father presented sufficient evidence that he had complied with the requirements applicable to him. The father alleged that the mother failed to make the child available for time-sharing and the court found that she willfully failed to comply-

The mother urges that “the trial court failed to make the requisite factual findings as to how the [mother] violated” the dissolution order’s time-sharing provisions. Florida courts “require that in order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order.” Id. at 749 (citation and quotation marks omitted).

We find that the trial court’s contempt order sufficiently detailed the mother’s noncompliance with the time-sharing provision of the final judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
112 So. 3d 696, 2013 WL 1890284, 2013 Fla. App. LEXIS 7368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunes-v-nunes-fladistctapp-2013.