Third District Court of Appeal
State of Florida
Opinion filed June 8, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1283
Lower Tribunal No. 14-18051
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Bernardo Fontes Antunes,
Appellant,
vs.
Ludmila De Oliveira,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Maria Elena
Verde, Judge.
Sandy T. Fox, P.A., and Sandy T. Fox, for appellant.
Baron, Breslin & Sarmiento, and Richard Baron, for appellee.
Before EMAS, MILLER and BOKOR, JJ.
EMAS, J.
Appellant, Bernardo Fontes Antunes (“the Father”) appeals from an
order denying his motion for contempt and to enforce the marital settlement
agreement entered into by him and appellee, Ludmila De Oliveira (“the
Mother”). For the reasons that follow, we affirm in part and reverse in part.
The couple was married and had a child in 2013. They divorced in
2015, and a Marital Settlement Agreement (MSA) was entered into and
adopted by the trial court as a part of the final judgment of dissolution. In the
MSA, the parties agreed that, upon their divorce, if either parent wanted to
take their minor child out of the United States, that parent would notify the
other in writing at least seven days prior to the trip. It further provided that a
failure to comply would result in the offending parent paying $10,000 to the
other parent, and that the offending parent would no longer be permitted to
travel internationally with the minor child until the child became an adult. The
provision reads, in pertinent part:
If either parent should travel internationally without giving prior
written notice to the non-traveling parent then the travelling
parent shall be responsible to pay the non-travelling parent the
sum of $10,000.00 within thirty (30) days from the date of the
violation and also the violating parent shall not be entitled to
travel internationally with the minor child all throughout the child’s
minority.
Following the divorce, the parents continued to have disagreements
about travelling with the minor child, with the Mother filing several motions
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with the trial court, seeking relief related to travel and timesharing with the
child. An Agreed Supplemental Final Judgment Modifying Timesharing was
entered on April 30, 2018, and later an agreed order was entered removing
certain provisions related to makeup timesharing and the right of first refusal
for timesharing when one parent is travelling. However, none of these
subsequent modifications altered the provision in the MSA at issue, relating
to notice of international travel with the minor child and the consequences
for a violation of same.
In February 2019, the trial court entered an order containing the
following relevant provisions:
Pursuant to the judgment of this Court adopting the MSA of the
parents, the minor child’s passport shall include authorization for
either parent to travel internationally with the child without the
consent or approval of the non-traveling parent.
[The Mother] shall be entitled to travel with the minor child without
[the Father’s] consent or approval required under the laws of
Brazil or the United States.
The Court retains jurisdiction to modify this order or issue
additional orders to effectuate the intent of the Court regarding
the granting to [the Mother] the right to obtain a Brazilian
passport for the minor child and to travel with the minor child
without the necessity of [the Father] execution [sic] any
documents with the country of Brazil or the United States.
It is plain that the purpose of this February 2019 order was to authorize
the Mother to obtain a passport for the child and to travel internationally
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without the necessity of the Father executing documents or giving consent
for those purposes. However, the February 2019 order did not address or
alter the provision of the MSA requiring the giving of timely notice of
international travel with the minor child.
Thereafter, during Thanksgiving 2019, the Mother travelled to Ireland
with the minor child without first giving timely notice to the Father. The Father
learned of this trip upon the child’s return, and he thereafter filed a motion
for contempt and to enforce the MSA against the Mother. The relief he
sought—pursuant to the express terms of the MSA—was an order requiring
the Mother to pay him $10,000, and prohibiting the Mother from thereafter
travelling internationally with the minor child. The Father filed a separate
motion seeking contempt sanctions as well.
The Mother responded, asserting that the February 2019 order of the
court allowed her to travel internationally with the child without the Father’s
consent, that this February 2019 order superseded all prior orders of the
court and thus, notice to the Father in advance of international travel was no
longer required.
After a hearing, the court denied the Father’s motion for contempt, and
further determined that: (1) the $10,000 payment for violation of the MSA’s
notice requirement was an unenforceable penalty clause; (2) enforcement of
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the MSA’s provision prohibiting the Mother to travel internationally with the
minor child was not in the child’s best interests; and (3) although the Mother
did violate the MSA’s notice requirement, the violation was not willful or
intentional. The court later denied the Father’s motion for rehearing, and this
appeal followed.
The MSA provides two separate sanctions when one parent fails to
timely notify the other parent of international travel with the minor child: (1)
payment of an agreed-upon amount ($10,000) by the offending parent to the
other parent; and (2) prohibiting the offending parent from any further
international travel with the child until the child reaches the age of majority.
We hold that the provision requiring payment of a $10,000 monetary
sanction is enforceable, but the provision prohibiting the offending parent
from any further international travel with the minor child is not enforceable
where (as here) the trial court made findings, supported by the evidence,
that enforcement of this provision is not in the best interests of the child.
In Palmer v. Palmer,
109 So. 3d 257 (Fla. 1st DCA 2013), our sister
court considered whether a contract provision in an MSA, which provided
that the former husband must pay the former wife a sum of money for failing
to timely refinance the marital home, was an unenforceable penalty clause.
The First District held that because “[a] contract provision setting damages
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for delay in performance is not void as a matter of law,” but, rather, merely
voidable, the clause was not subject to collateral challenge by the former
husband because it had been incorporated into the final judgment of
dissolution of marriage.
Id. at 258. The fact that the monetary penalty
provision had already been adopted and incorporated by the court in the final
judgment rendered it unassailable as between the parties, and the party
subject to the penalty was prohibited from challenging its enforcement.
The Mother contends the instant case differs from Palmer because,
here, a minor child is involved. However, the $10,000 monetary sanction is
a negotiated payment from the offending parent to the non-offending parent;
the sanction does not directly involve or affect the child, nor did the trial court
make any finding that the sanction indirectly did so, or that payment of this
sanction was not in the child’s best interests. We agree with the analysis in
Palmer and hold that the $10,000 monetary sanction, negotiated and agreed
to in the MSA, which was adopted by the trial court and incorporated into the
final judgment of dissolution, is not an unenforceable penalty clause. “It is
well settled that in a dissolution of marriage proceeding, the parties are free
to agree to obligations the trial court could not order in the absence of an
agreement.” Godwin v. Godwin,
273 So. 3d 16, 24 (Fla. 4th DCA 2019)
(quoting Taylor v. Lutz,
134 So. 3d 1146, 1148 (Fla. 1st DCA 2014)). The
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trial court erred in concluding that this monetary sanction was an
unenforceable penalty clause.
However, as to the additional sanction—a blanket prohibition of any
further international travel with the minor child—we hold the court acted
within its discretion in not enforcing this provision upon a determination that
such sanction was not in the child’s best interests. See Pagliaro v. Pagliaro,
264 So. 3d 196, 198 (Fla. 4th DCA 2019) (reiterating that “‘a trial court’s
responsibility to the child cannot be abdicated to any parent, or any expert,’
and a court is not bound by any agreement between parents” (internal
quotation omitted); Puglisi v. Puglisi,
135 So. 3d 1146, 1148 (Fla. 5th DCA
2014) (holding, as to agreements between parents on child support, custody,
or visitation: “The ‘best interests’ of the child takes predominance over any
agreement between the parents and must be independently determined by
the trial court”); Feliciano v. Feliciano,
674 So. 2d 937 (Fla. 4th DCA 1996)
(holding a trial court may set aside agreement on child support, custody and
visitation if it is not the best interest of the children).
We therefore affirm that portion of the trial court’s order denying
enforcement of the “no international travel” sanction in the MSA, based upon
the trial court’s finding that enforcement was not in the minor child’s best
interest. However, we reverse that portion of the trial court’s order which
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concluded the $10,000 sanction was an unenforceable penalty clause. We
remand with instructions to enter an amended order enforcing the agreed-
upon $10,000 payment and ordering the Mother to pay. 1
Affirmed in part, reversed in part, and remanded with directions.
1
We affirm, without further discussion, the order denying the Father’s motion
requesting the trial court hold the Mother in contempt for violating the MSA’s
provision. See Pace v. Pace,
295 So. 3d 898 (Fla. 5th DCA 2020) (holding:
“A trial court’s determination that a party is in willful contempt of court must
be based upon competent substantial evidence and is subject to an abuse
of discretion.”)
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