Lori A. Ford v. Michael Withers Ford

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

LORI A. FORD,

Appellant,

v.

MICHAEL WITHERS FORD,

Appellee.

No. 4D13-1369

[November 26, 2014]

Appeal of a non-final order from the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; James L. Martz, Judge; L.T. Case

No. 502010DR004027XXXXSB.

Stacey D. Mullins and Holly D. Schuttler of Schuttler & Greenberg,

Boca Raton, for appellant.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach,

and Holly Gayle Gershon of Holly Gayle Gershon, Attorney At Law, Boca

Raton, for appellee.

WARNER, J.

In this marital post-dissolution case, the former wife appeals an order

finding her in contempt and imposing sanctions for her failure to comply

with the parties’ parenting plan. The trial court ordered one of the parties’

children to attend a wilderness program; held the former wife in contempt

for violating the parenting plan; ordered the former wife to attend

individual therapy; and ordered the former wife to pay for the cost of

reunification therapy as well as a social investigation of the family.

Because the child turned eighteen during the pendency of this appeal, the

order has become moot as to the provisions directing him to attend a

wilderness program. We affirm the court’s finding of contempt and the

requirement of payment of costs. We reverse, however, the provisions of

the order requiring the former wife to attend therapy, because it was

imprecise and vague as to its duration, relying on a change in attitude of

the children rather than a change in the former wife’s psychological

condition.

The parties obtained a dissolution of their marriage in 2011. The final

judgment provided for shared parental responsibility for their three minor

children, including a parenting plan and timesharing schedule. Several

months later, the former husband filed a motion for contempt alleging that

the former wife was intentionally frustrating his ability to have a positive

relationship with the children.

As grounds, he alleged that she discussed details of the divorce

litigation with them; made derogatory statements about him; refused to

take action to deter disrespect of the former husband by his children; and

interfered multiple times with the former husband’s visitation by failing to

deliver the children to his house or allowing the children to “opt out” of

visitation. He requested that the court find the former wife in contempt;

order makeup timesharing; order the former wife to attend counselling to

avoid continued alienation of the children; and order the former wife to

pay for the children’s therapy.

At the former husband’s request, and before hearing the contempt

motion, the court appointed a reunification therapist to treat the family

and a psychologist to conduct a social investigation of the family. Other

hearings and motions were filed by the parties, many directed at the

middle son, who adamantly refused to visit with his father. The former

husband filed a supplemental motion for contempt alleging that the former

wife continued to actively and passively violate the parenting plan and

shared parental responsibility provisions in the final judgment. By this

time, the parties’ eldest child had turned eighteen.

The court held a full hearing on the contempt motions, at which the

court-appointed psychologist testified, as well as the parties. At the

conclusion, the trial court entered an order making findings regarding

specific dates on which the former wife interfered with the former

husband’s visitation, as well as specific instances where the former wife

contributed to the hostile relationship between the children and the former

husband. The court found that the former wife was angry at the former

husband and had empowered the sons to reject their relationship with

their father. It held her in contempt for violations of the final judgment.

The court ordered the middle son to attend a special wilderness

program during the summer. It also ordered individual therapy for the

former wife so that she could learn not to interfere with the relationship

between the children and their father, as well as how to share parental

responsibility for the children. To that end, the court ordered her to

commence individual therapy with a therapist of her choosing, and to

“continue her therapy until she is able to convince [the two minor children]

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that it is her desire that they see their father and love their father and to

create a loving, caring feeling toward their father in their minds.”

The court ordered the former wife to pay the full cost of the court-

appointed psychologist who had investigated the family. It also ordered

her to pay half the cost of the court-appointed reunification therapist. The

court declined to award the former husband monetary compensation for

lost visitation under section 61.13(4)(c), Florida Statutes (2012), noting

that the former husband had not requested it in his prior pleadings and

that the former wife therefore was not on notice of this possibility. It also

ordered the former wife to pay the former husband’s attorney’s fees. The

former wife appeals this ruling.

In her brief, the former wife raises several issues regarding the provision

requiring the middle son’s attendance at the wilderness program. The son

turned eighteen during the pendency of this appeal, and the parties agree

that the family court has no further jurisdiction over the son at this time.

We therefore deem these issues moot.

Next, the former wife complains that the court erred in holding her in

contempt for violating the parenting plan, because it failed to identify

specific provisions of the plan that she had violated and instead relied on

the aspirational goal for her to foster a good relationship between the

former husband and the children. A contempt order is reviewed for an

abuse of discretion or fundamental error. Wilcoxon v. Moller, 132 So. 3d

281, 286 (Fla. 4th DCA 2014). Yet, where the trial court bases contempt

upon noncompliance with something an order does not say, “the standard

of review is legal error, not abuse of discretion.” Harris v. Hampton, 70 So.

3d 747, 749 (Fla. 4th DCA 2011) (quoting DeMello v. Buckman, 914 So. 2d

1090, 1093 (Fla. 4th DCA 2005)).

We have examined the court’s contempt order and conclude that it

recites multiple instances where the former wife violated specific

provisions of the parenting plan. She actively participated in her two sons’

refusal to stay at the former husband’s home for his visitation, and for a

period of several months she did not bring the children to the former

husband’s home for visitation, as required by the parenting plan. In other

specific instances, she scheduled social events for the children on the

former husband’s time-sharing evenings, again in violation of a specific

provision of the parenting plan.

Although the court also found that the former wife violated the plan’s

aspirational goal to foster a good relationship with each parent, which itself

may not have been precise enough to hold her in contempt, there was

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competent substantial evidence of specific violations of the parenting plan

to support the finding of contempt. The requirements in the parenting

plan in this case were far more specific than those in the temporary order

in Marcus v. Marcus, 902 So. 2d 259, 262 (Fla. 4th DCA 2005), on which

the former wife relies. The plan included sufficiently precise commands

such that the former wife can be held in contempt for violating them.

The former wife also maintains that the trial court erred by holding her

in contempt because it did not find that she had the ability to comply with

the parenting plan. She argues the children themselves refused to stay

with their father for visitation. “[I]n 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.” Harris, 70 So. 3d at 749 (quoting Dep’t of

Children & Families v. R.H., 819 So. 2d 858, 862 (Fla. 5th DCA 2002)); see

also Wilcoxon, 132 So. 3d at 287 (“[A] party cannot be held in contempt for

non-compliance with a court order if the party did not have the ability to

comply with the court order.”).

The court, however, specifically found that she did have the ability to

get the children to comply with visitation, because she did so upon

occasion. And there was evidence in the record to support the finding that

her failure to comply with visitation was willful. There was evidence that

she encouraged the children not to spend time with their father, as

provided to him in the parenting plan: the court-appointed social

investigator opined that she had empowered the children to reject their

relationship with their father. Moreover, even if the former wife could not

be held in contempt for every time her middle son refused to stay with his

father, she clearly had the ability to schedule social events on days other

than those on which the former husband had visitation with the children.

Thus, we conclude that there was competent substantial evidence to show

that the former wife did have the ability to comply with the parenting order

but affirmatively refused to do so.

As part of the remedy for her violations of the parenting plan, the court

ordered the former wife to obtain psychological counseling and continue

with it “until she is able to convince [the two minor children] that it is her

desire that they see their father and love their father and to create a loving,

caring feeling toward their father in their minds.” The former husband

suggests that this issue is moot, as a successor judge later vacated that

portion of the order. The vacation of that order was entered while this

appeal was pending. Although this court relinquished jurisdiction for the

trial court to rule on various issues, it does not appear that any written

order was entered. Therefore, we address the issue.

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The foregoing provision requiring therapy until the former wife can

convince her children that she desires them to have a loving relationship

with their father is not a purge provision. The former wife has not been

threatened with incarceration if she does not go through with therapy. The

trial court could impose a sanction under section 61.13(4)(c)7., Florida

Statutes (2012), which permits the trial court to “impose any other

reasonable sanction as a result of noncompliance” with the time-sharing

portion of the parenting plan. We are hard-pressed, however, to classify

therapy as a “sanction.” Instead, the court was hoping to remedy the

dysfunctional relationships between the father and his children, which the

court found were due largely to the former wife’s animosity towards the

former husband. The statute does give the court the authority to “make

specific orders regarding the parenting plan and time-sharing schedule as

such orders relate to the circumstances of the parties and the nature of

the case and are equitable . . . . ” § 61.13(5), Fla. Stat. (2012). This

provision, however, has never been interpreted to give authority to order

the parents into therapy.

Nevertheless, the former wife does not challenge the authority of the

trial court to order counseling. She claims instead that the counseling

provision conditions the duration of therapy on “vague, ambiguous and

potentially insurmountable goals.” We agree that the provision is vague

and is much too broad to be enforced. See Lanza v. Lanza, 804 So. 2d

408, 409-10 (Fla. 4th DCA 2001). Therefore, we reverse the order to the

extent that it requires the former wife to submit to therapy under the

conditions set forth in the order.

Additionally, the former wife contests the award to the former husband

of the costs of the experts, as well as his attorney’s fees. She argues the

former husband has a clearly superior ability to pay all of the litigation

costs and fees. We conclude that the court had the authority to award the

expert and attorney’s fees in accordance with the statute.

Section 61.13(4)(c), Florida Statutes (2012), authorizes the trial court

to award costs and attorney’s fees incurred where a parent has not

provided time-sharing to the other parent, as well as order any other

reasonable sanction as a result of noncompliance:

(c) When a parent refuses to honor the time-sharing

schedule in the parenting plan without proper cause, the

court:

....

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2. May order the parent who did not provide time-sharing

or did not properly exercise time-sharing under the time-

sharing schedule to pay reasonable court costs and attorney’s

fees incurred by the nonoffending parent to enforce the time-

sharing schedule.

....

7. May impose any other reasonable sanction as a result of

noncompliance.

Together these provisions authorize the trial court to order the former wife

to pay both the attorney’s fees and expert’s fees incurred in enforcing the

parenting plan.

Robinson-Wilson v. Wilson, 932 So. 2d 330 (Fla. 4th DCA 2006),

explains why the “need and ability to pay” test of section 61.16(1) does not

apply here:

This statutory power [under section 61.13(4)] to award

attorney’s fees is outside of section 61.16(1), Florida Statutes

(2004), which requires a consideration of “the financial

resources of both parties” as part of the decision to award fees

and costs. The power to award fees is triggered by the

wrongful conduct of the custodial parent, without

consideration of the noncustodial parent’s financial

resources.

Id. at 331. As the trial court in this case was also enforcing the parenting

plan provisions under section 61.13(4), the analysis of Robinson-Wilson

applies. The court did not err in its award of attorney’s fees.

Finally, the former wife claims that the court’s order violates Perlow v.

Berg-Perlow, 875 So. 2d 383 (Fla. 2004). She maintains that the court

simply adopted the former husband’s proposed order. We find this

contention to be meritless. Although the court did use substantial

portions of the proposed order, it clearly reflects the court’s considered

judgment, as the court did not include a rather substantial fine for lost

visitation, which was part of the former husband’s proposed order but was

removed by the court.

In accordance with the foregoing, we reverse that portion of the order

requiring the former wife to obtain counseling. We affirm all other portions

of the order except those which we conclude are moot.

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Affirmed in part; reversed in part.

CONNER, J., concurs specially with opinion.

KLINGENSMITH, J., concurs specially with opinion.

CONNER, J., concurring specially.

I concur in the result, but disagree that the trial court did not have

authority to order counseling for the former wife under the facts of this

case. While I agree that it would be best for the legislature to more clearly

identify the authority of the court to order counseling for a parent when it

appears that, without therapy or counseling, it is unlikely the parent will

be able to successfully co-parent because of animosity toward the other

parent or other emotional problems, I contend there is existing statutory

authority for such action by the trial court. Admittedly, the authority is

implicit, rather than explicit. Cf. Gulf Coast Electric Coop., Inc. v. Johnson,

727 So. 2d 259, 263 (Fla. 1999) (recognizing the Public Service

Commission, as a matter of law, had the implicit authority to establish

boundaries of service for utilities derived from two separate statutory

sections); Witmer v. Dep’t of Bus. & Prof’l Regulation, 662 So. 2d 1299,

1301 (Fla. 4th DCA 1995) (recognizing DBPR had “implied authority” to

make rules to the extent necessary to implement unrepealed statutes).

I point to three different statutory provisions for such authority:

sections 61.001, and 61.13(2) and (3), Florida Statutes (2012).

In section 61.001, the legislature clearly stated:

(1) This chapter shall be liberally construed and applied.

(2) Its purposes are:

(a) To preserve the integrity of marriage and to safeguard

meaningful family relationships;

....

(b) To mitigate the potential harm to the spouses and their

children caused by the process of legal dissolution of

marriage.

(emphasis added). Additionally, in section 61.13(2)(a), the legislature

clearly gave the court the power to “approve, grant, or modify a parenting

plan.” § 61.13(2)(a), Fla. Stat. (2012). Although section 61.13(2)(b) lists

the items which “at a minimum” must be addressed, it does not appear

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the legislature intended that list to be exhaustive, which means, in

approving the parenting plan, the court can consider additional

requirements.

More importantly, in section 61.13(2)(c), the legislature said “[t]he court

shall determine all matters relating to parenting and time-sharing of each

minor child of the parties in accordance with the best interests of the

child . . . .” § 61.13(2)(c), Fla. Stat. (2012) (emphasis added). The “best

interest of the child” theme is repeated in section 61.13(3):

(3) For purposes of establishing or modifying parental

responsibility and creating, developing, approving, or

modifying a parenting plan . . . which governs each parent’s

relationship with his or her minor child and the

relationship between each parent with regard to his or her

minor child, the best interest of the child shall be the

primary consideration. . . Determination of the best interests

of the child shall be made by evaluating all of the factors

affecting the welfare and interests of the particular minor

child and the circumstances of that family, including, but

not limited to:

(a) The demonstrated capacity and disposition of each

parent to facilitate and encourage a close and continuing

parent-child relationship, to honor the time-sharing

schedule, and to be reasonable when changes are

required.

....

(c) The demonstrated capacity and disposition of each

parent to determine, consider, and act upon the needs of

the child as opposed to the needs and desires of the

parent.

....

(f) The mental and physical health of the parents.

....

(r) The capacity and disposition of each parent to protect the

child from the ongoing litigation as demonstrated by not

discussing the litigation with the child, not sharing

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documents or electronic media related to the litigation

with the child, and refraining from disparaging

comments about the other parent to the child.

....

(t) Any other factor that is relevant to the determination of

a specific parenting plan, including the time-sharing

schedule.

§ 61.13(3), Fla. Stat. (2012) (emphasis added).

In addition to sections 61.001, and 61.13(2), (3), I also submit section

61.122, Florida Statutes (2012), lends support to the notion that the

legislature intended for courts to have authority to order parents to attend

therapy or counseling when necessary to protect the best interest of

children. Section 61.122 governs the liability of psychologists who develop

a parenting plan recommendation in dissolution of marriage proceeding.

It appears implicit that the legislature envisioned psychologists making

recommendations to the court to assist the court in developing parenting

plans. It seems equally implicit that psychologists may recommend the

need for therapy or counseling to make the parenting plan successful.

Although one would not initially think that participating in mental

health therapy or counseling is part of parenting, clearly there are limited

instances in which one cannot effectively parent without therapy or

counseling. Parenting inherently invokes and requires the ability to put a

child’s needs ahead of the parent, including the child’s need to have some

emotional bond with both halves of the two biological sources of the child’s

being. Thus, there can be very limited instances in which counseling or

therapy is a necessary component of parenting.

In all but rare instances, it is not necessary, though perhaps tempting,

to order one or both parents to attend counseling when the emotions of

animosity flair up during a dissolution proceeding. Thus, it would be rare

for a judge to order parents to attend therapy or counseling in constructing

an initial parenting plan. However, when a plan has been approved by the

court, and it becomes clear to the court from the evidence that no plan is

going to work without one or both parents attending therapy or counseling,

I contend the current language in Chapter 61 gives the judge the implicit

authority to order therapy or counseling, where it is clearly in the best

interest of child in order “to mitigate the potential harm to . . . the[] children

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caused by the process of legal dissolution of marriage,” and “to safeguard

meaningful family relationships.” § 61.001(2), Fla. Stat. (2012).1

Finally, to the extent there is life left in the principle that courts of

equity have inherent authority to protect children, I would invoke that

principle in this case, based on the particular facts, and affirm the trial

court’s authority to order the former wife to attend therapy. “The public

policy of this state to protect the interests of children during dissolution

proceedings is so firmly established in our jurisprudence as to require no

citation of authority.” Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d 947,

949 (Fla. 3d DCA 2006). As early as 1933, our supreme court, in Duke v.

Duke, 147 So. 588, 589 (Fla. 1933), recognized the longstanding principle

that courts of equity have inherent power to protect infants and said:

One of the most distinctive duties of the court of chancery in

England was the protection of the interests of infants. It was

said by Blackstone that chancery “is the supreme guardian,

and has the superintendent jurisdiction of all the infants in

the kingdom.” See, also, Pomeroy’s Eq. Juris. (4th Ed.) §§

1304, 1307.

(quoting from the opinion of a commissioner in Fisher v. Guidy, 142 So.

818 (Fla. 1932)); accord § 61.011, Fla. Stat. (2012) (proceedings under

Chapter 61 are in chancery); Simms v. Dep’t. of Health & Rehab. Servs.,

641 So. 2d 957, 961 (Fla. 1984); Pollack v. Pollack, 31 So. 2d 253, 254 (Fla.

1947); K.A.S. v. R.E.T., 914 So. 2d 1056, 1061 n.3 (Fla. 2d DCA 2005);

Cooper v. Cooper, 194 So. 2d 278, 281 (Fla. 2d DCA 1967). The particular

facts of this case demonstrate the very limited situation in which inherent

authority of the court to protect children justifies the use of therapy or

counseling as a parenting tool.

KLINGENSMITH, J., concurring specially.

I write separately to address that portion of the trial court’s order

requiring the former wife to obtain psychological counseling and ordering

the child to attend wilderness camp. There is a misconception among

some family court judges that a court overseeing a dissolution of marriage

has powers similar to those of the court in a chapter 39 case, that being

the power (or obligation) to emotionally “reunite” a child with a parent.

Here, the court’s order provided that the former wife obtain counseling

1The conclusion from the evidence that therapy or counseling is needed does not

require expert testimony.

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“until she is able to convince [the two minor children] that it is her desire

that they see their father and love their father and to create a loving, caring

feeling toward their father in their minds.” As the majority opinion points

out, this language improperly puts the length of therapy in the control of

the children, subject to ending whenever the children become “convinced.”

More importantly, regardless of how desirable or beneficial the court may

believe such counseling might be in any given case, a court in a chapter

61 case has no statutory authority to order therapy for any party with the

goal of “rebuilding” a relationship between a parent and a child.

Unlike a judge in a chapter 39 proceeding, a judge presiding over a

chapter 61 case has no statutory authority to order parties into therapy to

correct their behavior. And, similar to the court’s order here requiring the

child to attend camp, a judge has no authority to order action by the child

designed to remedy behavior that may be causing stress to the parent. For

instance, there is no provision in chapter 61 authorizing the trial court to

order an addicted parent into drug counseling, which a dependency judge

can do under section 39.507(10), Florida Statutes, just as there is no

provision in chapter 61 to order a parent into any other sort of therapy or

counseling to address other behaviors. As the majority opinion correctly

points out, section 61.13(5), Florida Statutes, has never been interpreted

by any appellate court to provide the legal basis for ordering a parent or

child into therapy, nor does any other provision of chapter 61 give such

authority.

Chapter 61 also contains no language similar to sections 39.507(10) or

39.6011, Florida Statutes, authorizing the trial judge to fashion a

reunification plan for parents and their children, or to order the parents

into long-term, intensive therapy or counseling to effect a successful

parenting or timesharing plan. Rather, section 61.13 directs the judge to

take evidence of the facts concerning the separated parents and to fashion

a parenting plan and timesharing schedule that is in the child’s best

interest. §§ 61.13(2)(c)2.a.; 61.13(3), Fla. Stat. (2012).

The Legislature intended that chapter 61 proceedings be quite different

from chapter 39 cases. While reunification of the family is a goal of a

chapter 39 dependency action, the family in a chapter 61 case is dividing

due to irreconcilable differences. Reunification is not a goal. Although it

is the public policy of the state, as provided in section 61.13(2)(c)1., “that

each minor child has frequent and continuing contact with both parents

after the parents separate,” that public policy is qualified by the

requirement under section 61.13(3) that the court must make the child’s

best interests the primary consideration only in fashioning a parenting

plan and a timesharing schedule, not in creating rehabilitative schemes

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designed to address issues for any particular family member.

§§ 61.13(2)(c)1.; 61.13(3).

Remedying chronic relationship difficulties between a parent and child

is not a function of a chapter 61 proceeding. While it may be tempting for

a judge to enter orders designed to unravel the tangled skeins of a family’s

history and attempt to restore failed relationships, this is not the court’s

role. It is the court’s obligation in a chapter 61 proceeding only to take the

parties as they are, and to fashion an appropriate parenting plan and

timesharing schedule from that information. It is beyond dispute that

chapter 61 does not expressly provide the authority to issue orders

requiring therapy. Deriving such authority through penumbras formed by

emanations of chapter 61 would allow limitless expansion of judicial power

in this area so long as a court deems it to be in the “best interests” of a

child. It is not enough to say, as my colleague Judge Conner suggests,

that this power exists but should only be used sparingly and in rare

circumstances. To allow, let alone to require anything more would open a

Pandora’s Box, giving unfettered and unrestrained discretion to trial

judges to fashion all sorts of “therapeutic” orders to fit a given case, limited

only by the court’s imagination.

In sum, under chapter 61, the court has no authority to fashion an

order for a reunification plan and no authority to order either a parent or

any child into therapy or counseling. Indeed, I believe there is a serious

question about whether the court has any authority to order the children

of a failed marriage to do anything whatsoever. These children are not

parties to the dissolution proceeding, and it is dubious whether the court

can compel their compliance via an enforceable order. The only real

control the court has over these children is indirect, such as the ability to

order conditions under which their parents shall interact with them.

Unless and until the Legislature acts to provide such specific authority,

courts cannot impose remedies such as orders for parental therapy out of

whole cloth, however tempting it might be.

Therefore, despite having the best of intentions, I believe the court

exceeded the scope of its statutory authority by ordering the former wife

to obtain and pay for reunification therapy, and by ordering one of the

children to attend a wilderness program.

* * *

Not final until disposition of timely filed motion for rehearing.

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