Posted by Nydia Streets of Streets Law in Florida Child Custody

A parent’s failure to follow a Florida parenting plan may result in that parent being held in contempt of court. But in order to be held in contempt, a final judgment must clearly and definitively direct a party regarding his or her obligations under the order. We see this principle at play in the recent appellate case Cancino v. Cancino, 3D17-601 (Fla. 3d DCA February 13, 2019).

The former wife was accused of violating shared parental responsibility by unilaterally taking the parties’ child to a doctor’s appointment without notifying the former husband and obtaining a diagnosis for the child which resulted in the child’s school implementing a specialized education plan. The former husband filed a motion to show cause, requesting that the court hold the former wife in indirect criminal contempt for her failure to confer with the former husband on major medical decisions affecting the children.

After a hearing, the court found the former wife in contempt and placed her on non-reporting probation. The former wife appealed, and the standard of review pronounced by the appellate court was “When a trial court holds a party in contempt based on that party's failure to follow an order that does not 'clearly and definitely' make the party aware of what the party must do, the standard of review is legal error."

Holding the final judgment was not clear and definite as to the issues raised by the former husband, the appellate court reversed the probation order. The appellate court held, “Given these principles, we find that the Final Judgment, which incorporated the terms of the MSA, was not sufficiently explicit and precise with regard to the wife's obligations to exercise shared parental responsibility concerning the non-emergency health care of the parties' children to support a finding of indirect criminal contempt. Shared parental responsibility, as defined in section 61.046(17), Florida Statutes (2012), "means a court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly." Here, the trial court found that the wife intentionally violated the father's shared parental responsibility by taking the parties' child to the doctor for a fever, taking the parties' child to an eyeglass appointment where the husband did not "participate in the decision, before you do it," and signing a consent form permitting the school to institute a screening/assessment of the parties' child.”

The appellate court continued, “The Final Judgment, however, provides only that "[b]oth parties shall share parental responsibility for the children consistent with Florida Statute." This provision is not so clear and definite as to instruct the wife regarding her obligation to confer with the husband concerning non-emergency medical treatment of the parties' children. Indeed, the provision fails to explicitly set forth the parties' obligation under the Florida Statues—to "confer with each other so that major decisions affecting the welfare" of the children will be determined jointly. § 61.046(17), Fla. Stat. (2012). And although the provision references the "Florida Statute," the provision does not direct the parties to the specific section at issue, section 61.046(17). Moreover, any contention that the statutory obligation of "shared parental responsibility" is inherent in the final judgment because it references the Florida Statues in general must fail because "implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt." In sum, there is nothing in the Final Judgment to put the wife on notice as to what she is required to do in order to comply with the trial court's command to "share parental responsibility for the children consistent with Florida Statute.”

If you are facing criminal contempt in your Florida family law matter, consult with a Miami family law attorney. A consultation may help you understand your next best steps and the best way to proceed in light of the factors in your case.