Cancino v. Cancino

Third District Court of Appeal
State of Florida
Opinion filed February 13, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-601
Lower Tribunal No. 13-12474
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Rhody Cancino,
Appellant,
vs.
Fernando Cancino,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.
Alvarez | Gonzalez | Menezes, LLP, and Ignacio M. Alvarez and Carlos F.
Gonzalez, for appellant.
Lourdes M. Fernandez, P.A., and Lourdes M. Fernandez, for appellee.
Before SALTER and FERNANDEZ, JJ., and LAGOA, Associate Judge.
LAGOA, Associate Judge.
Rhody Cancino (the “wife”) appeals from an Order of Probation for
Respondent/Former Wife Rhody Cancino for Intentional Violations of the Court’s
Final Judgment of Dissolution of Marriage and Final Order Ratifying Post
Judgment Mediation Agreement (the “Probation Order”). The Probation Order
finds the wife guilty of indirect criminal contempt for refusing to exercise shared
parental responsibility. We reverse the Probation Order in its entirety.
I. FACTUAL AND PROCEDURAL HISTORY
The wife and Fernando Cancino (the “husband”) were married in 2002. The
husband and wife have three minor children from the marriage. On May 6, 2013,
the husband filed his petition for dissolution of marriage and other relief. On
October 3, 2013, the husband and wife entered into a Mediated Marital Settlement
Agreement (the “MSA”). The MSA included the following provision:
1. PARENTING PLAN, TIME SHARING AND
SHARED PARENTAL RESPONSIBILITY OF
MINOR CHILDREN: The parties shall have time
sharing with the minor children as set forth in Schedule
“A” which is attached hereto, incorporated herein, and
captioned “Schedule A”. Both parties shall share
parental responsibility for the children consistent with
Florida Statute.
(emphasis added). On October 21, 2013, the trial court entered a Final Judgment
of Dissolution of Marriage (the “Final Judgment”), which approved and
incorporated the MSA into the Final Judgment.
The parties subsequently engaged in post-judgment mediation proceedings
and on December 14, 2015, entered into a Second Post Judgment Mediation
Agreement, which provided that any provision of the MSA not in conflict with the
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Second Post Judgment Mediation Agreement shall remain in full force and effect.
On December 28, 2015, the trial court entered an Order Ratifying Second Post
Judgment Mediation Agreement Dated December 14, 2015.
On May 5, 2016, the husband filed his Amended Verified Motion/Affidavit
for Sanctions and for Order to Show Cause for Indirect Criminal Contempt Against
Respondent/Wife Rhody Cancino for Intentional Violations of the Court’s Final
Judgment of Dissolution of Marriage and Final Order Ratifying Post Judgment
Mediation Agreement. The husband asserted that the wife acted in contravention
of the Final Judgment and MSA by exercising unilateral decision-making with
regard to the healthcare and general welfare of their children. Specifically, the
husband alleged that the wife obtained a diagnosis of attention deficit disorder for
one of the parties’ children from their pediatrician on February 5, 2015, without
telling him prior to the appointment, and that she did not notify him of the
diagnosis. The husband also alleged that the child had been screened for an
accommodation plan at school based upon a consent form signed by the wife. The
husband stated the wife failed to provide him with prior notification of non-
emergency medical and dental appointments for the children. Finally, the husband
alleged that “in October of 2015, [wife] made an appointment for [the parties’
child] to enroll in a visual therapy program, and only gave [the husband] an
approximately 45-minute notice of the appointment. [The husband] objected to the
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making of the appointment, and, after conducting thorough independent research,
also objected to the visual therapy program.”
Based upon the husband’s allegations, on September 7, 2016, the trial court
entered an Order to Show Cause for Indirect Criminal Contempt Against
Respondent/Former Wife Rhody Cancino for Intentional Violations of the Court’s
Final Judgment of Dissolution of Marriage and Final Order Ratifying Post
Judgment Mediation Agreement (the “Order to Show Cause”). The trial court
conducted a hearing on the Order to Show Cause on December 5, 2016, and made
the following findings:
I find that the [husband] has proven beyond a
reasonable doubt that the [wife] has on at least 3
occasions intentionally violated the father’s shared
parental responsibility.
I find that you’re guilty of indirect criminal
contempt with respect to taking your child to the doctor
for a fever. He gets to know before you do it.
The eyeglass incident, he gets to know, participate
in the decision, before you do it.
The consent that you signed at the school for the
screening and the assessment, you did it without his
knowledge, without his consent. He didn’t find out for
months, so I find that you’re guilty of indirect criminal
contempt.
After finding the wife guilty of indirect criminal contempt, the trial court
permitted the wife to present evidence of mitigating circumstance before
sentencing. The following day, December 6, 2016, the trial court held a sentencing
hearing, and found the wife guilty of indirect criminal contempt, withheld
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adjudication of guilt, and placed the wife on six months of non-reporting
probation. The trial court also orally pronounced special conditions of probation.
On February 17, 2017, the trial court entered the Probation Order. The trial
court found that the wife “has willfully refused to exercise shared parental
responsibility by exercising unilateral decision-making with regards to the non-
emergency healthcare of the minor children in direct contravention to the Final
Judgment and MSA beyond a reasonable doubt on at least three (3) separate
occasions.” The Probation Order further stated:
8. Specifically, on February 5, 2015, [the child’s
pediatrician] diagnosed one of the minor children . . .
with Attention Deficit Disorder (“ADD”); at no time
prior did Former Wife notify Former Husband that an
appointment was scheduled on February 5, 2015, nor did
Former Wife inform Former Husband of said diagnosis.
Instead, Former Wife took or transmitted the diagnosis to
the minor child’s school, which caused a process toward
the creation and implementation a Section 504
Accommodation Plan to begin. . . . Additionally, Former
Husband learned the minor child had been screen[ed]
based on a form signed unilaterally by Former Wife
when the Former Husband and Former Wife attended a
meeting regarding the diagnosis on April 23, 2015.
Former Wife deliberately concealed both the screening
and the diagnosis from the Former Husband thereby
depriving Former Husband of exercising shared parental
responsibility and being involved in the health care
decisions relative to the minor child in a meaningful and
integral way.
9. Former Wife violated shared parental
responsibility beyond a reasonable doubt by failing to
notify Former Husband of the minor children’s medical
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appointments, in advance, on at least three (3) non-
emergency occasions, inclusive of the ADD diagnosis as
set forth above. Former Wife did not provide Former
Husband with prior notification of a January l0, 2015,
non-emergency appointment for [the child] at the
pediatrician for a fever and a sore throat and further
failed to timely inform Former Husband of an
experimental visual therapy program appointment for
[the child] by providing Former Husband with only a
couple hours’ notice for the appointment in Fort
Lauderdale.
The wife’s appeal from the Probation Order ensued.1
II. STANDARD OF REVIEW
Generally, “[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.” DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA
2005). However, “[w]hen 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.” Kane
v. Sanders, 232 So. 3d 1107, 1111 (Fla. 3d DCA 2017) (quoting Rojo v. Rojo, 84
So. 3d 1259, 1261 (Fla. 3d DCA 2012)); see also Ford v. Ford, 153 So. 3d 315,
318 (Fla. 4th DCA 2014) (“[W]here the trial court bases contempt upon
1 The Probation Order was stayed pending the wife’s appeal in this Court.
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noncompliance with something an order does not say, ‘the standard of review is
legal error, not abuse of discretion.’” (quoting Harris v. Hampton, 70 So. 3d 747,
749 (Fla. 4th DCA 2011))); Wilcoxon v. Moller, 132 So. 3d 281, 286 (Fla. 4th
DCA 2014).
III. ANALYSIS
We begin our analysis by addressing the written Probation Order’s failure to
conform to the trial court’s oral pronouncement of the factual basis for the finding
of contempt. To the extent a written contempt order fails to conform to the trial
court’s oral pronouncements, the contempt order must be reversed.2 Romero v.
Romero, 916 So. 2d 952, 954 (Fla. 3d DCA 2005); see also Glick v. Glick, 874 So.
2d 1238, 1241 (Fla. 4th DCA 2004). This is so because of the well-established
principle that a trial court’s oral pronouncement controls over its written order.
Cajuste v. Herlitschek, 204 So. 3d 80, 83 (Fla. 4th DCA 2016); Hampton Manor,
Inc. v. Fortner, 141 So. 3d 1260, 1262 (Fla. 5th DCA 2014); Glick, 874 So. 2d at
1241; see also Shacker v. State, 106 So. 3d 36, 36 (Fla. 3d DCA 2013) (reversing
order revoking probation to the extent the order did not “correctly reflect the oral
pronouncement” regarding commission of violations of probation); Ulano v.
2 Although not relevant here because the trial court withheld adjudication, we note
that a judgment of indirect criminal contempt need not contain written findings of
fact where oral findings are made on the record. Gidden v. State, 613 So. 2d 457,
460 (Fla. 1993); Sandelier v. State, 238 So. 3d 831, 835 n.1 (Fla. 4th DCA 2018).
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Anderson, 626 So. 2d 1112, 1112 (Fla. 3d DCA 1993) (“Reversal is required
where a final judgment is inconsistent with a trial court’s oral pronouncements.”).
Here, the trial court’s oral ruling that the wife was guilty of indirect criminal
contempt was based upon three specific incidences: (1) “taking your child to the
doctor for a fever” without the husband knowing before she did so; (2) “the
eyeglass incident, he gets to know, participate in the decision, before you do it”;
and (3) signing the consent form permitting the school to institute a
screening/assessment of the parties’ child.3 With regard to the “eyeglass incident,”
however, the Probation Order does not conform to the trial court’s oral
pronouncement. Specifically, the Probation Order finds the wife in contempt for
failing to timely notify the husband of the appointment “by providing Former
Husband with only a couple hours’ notice for the appointment in Fort Lauderdale,”
whereas the trial court’s oral pronouncement found the wife guilty of indirect
criminal contempt for not permitting the husband to “participate in the decision,
before you do it.” Given this conflict, the oral pronouncement controls.
Additionally, the Probation Order significantly expands upon the trial
court’s oral pronouncement by finding the wife in contempt for failing to notify the
husband prior to a February 5, 2015, pediatrician appointment at which the wife
3 During the wife’s testimony in support of mitigating circumstances subsequent to
the trial court’s finding of guilt, the trial court reiterated that its finding of indirect
criminal contempt was based upon “[e]yeglasses, fever, consent at school.”
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obtained a diagnosis of attention deficit disorder for one of the parties’ children,
and for failing to inform the husband of the attention deficient disorder diagnosis.
The trial court’s oral ruling, however, did not contain a finding of guilt on these
bases, and was instead limited only to the wife’s signing of the consent form for
screening/assessment of the parties’ child. We therefore confine our analysis to
the remaining oral pronouncements—taking the child to a doctor because of a
fever, the “eyeglass incident,” and the wife’s signing of the consent form. See,
e.g., Cajuste, 204 So. 3d at 83-84 (conducting analysis based on trial court’s oral
pronouncement where conflict existed between oral pronouncement and written
orders).
Turning to the issue on appeal, the wife argues that the Probation Order
must be reversed because the evidence failed to establish that she intentionally
violated a clear and precise court order. We agree.4
Unlike civil contempt, which is used to “obtain compliance on the part of a
person subject to an order of the court[,] . . . [t]he purpose of criminal contempt . . .
is to punish. Criminal contempt proceedings are utilized to vindicate the authority
of the court or to punish for an intentional violation of an order of the court.”
Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985) (emphasis in original).
“Criminal contempt proceedings are either direct or indirect. Conduct committed
4 Because we are reversing on this basis, we do not address the remaining issues
raised by the wife.
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outside the presence of the court is indirect criminal contempt.” Plank v. State,
190 So. 3d 594, 606 (Fla. 2016) (citation omitted); accord Pugliese v. Pugliese,
347 So. 2d 422, 425 (Fla. 1977) (“Where an act is committed out of the presence
of the court, the proceeding to punish is for indirect (sometimes called
constructive) contempt.”).
Where a charge of criminal contempt “is based upon the violation of a court
order, the contemnor’s intent to violate the order is a necessary element of the
offense.” Haas v. State, 196 So. 3d 515, 523 (Fla. 2d DCA 2016). Intentional
violation of court’s order must be proven beyond a reasonable doubt. Id.Furthermore, “[b]ecause criminal contempt is ‘a crime in the ordinary sense,’
imposition of criminal contempt sanctions requires that a contemnor be afforded
the same constitutional due process protections afforded to criminal defendants.”
Parisi v. Broward County, 769 So. 2d 359, 364 (Fla. 2000) (quoting Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994)). To that end,
Florida Rule of Criminal Procedure 3.840, which governs a prosecution for
indirect criminal contempt, “requires that the court issue an order to show cause
with reasonable time allowed for preparation of the defense and further provides
that the defendant is ‘entitled to be represented by counsel, have compulsory
process for the attendance of witnesses, and testify in his or her own defense.’”
Plank, 190 So. 3d at 607 (quoting Fla. R. Crim. P. 3.840(d)).
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“It is well established that a party cannot be sanctioned for contempt for
violating a court directive or order which is not clear and definite as to how a party
is to comply with the court’s command.”5 Ross Dress for Less Va., Inc. v. Castro,
134 So. 3d 511, 523 (Fla. 3d DCA 2014); accord Smith v. State, 954 So. 2d 1191,
1194 (Fla. 3d DCA 2007) (“When a finding of contempt is based upon a violation
of a court order, that order must be one which clearly and definitely makes the
person aware of its command.”); Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d
DCA 1975). For that reason, “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.” Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA 1998).
Moreover, because a finding of contempt must be based upon a violation of
the clear terms of a court order, a provision which is merely inherent in the trial
court’s order will not support a finding of contempt. Id. at 844 (“[I]mplied or
inherent provisions of a final judgment cannot serve as a basis for an order of
contempt.”); see Wilcoxon, 132 So. 3d at 287 (“A court cannot base contempt
upon noncompliance with something an order does not say, and we will not read
implications into an order to justify contempt.”); Reder v. Miller, 102 So. 3d 742,
744 (Fla. 2d DCA 2012) (“While [appellant’s] acts may have violated the ‘spirit’
5 This principle applies within the context of both civil contempt and criminal
contempt. See Wilcoxon, 132 So. 3d at 286.
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or ‘intent’ of the trial court’s orders, a finding of contempt requires the violation of
the letter of an order—not its spirit.”).
Relevant for our purposes, an order entered within the context of dissolution
proceedings which is not sufficiently explicit and precise as to a party’s obligations
will not support a finding of contempt. For example, in Kane v. Sanders, 232 So.
3d 1107 (Fla. 3d DCA 2017), the parenting plan contained a “right of first refusal”
clause, which stated: “‘To the extent the party entitled to access with the child is
unable to enjoy access to the child for whatever reason, then the other parent shall
be entitled to the right of first refusal to care for the child over any other third
party.’” Id. at 1109 n.1. The father filed a motion for contempt, alleging that he
was deprived of his right of first refusal on five occasions when the mother left
“the children at home with child care for a matter of hours.” Id. at 1109. The trial
court granted the father’s motion for contempt. Id. at 1110. In reversing and
vacating the trial court’s order finding the mother in contempt, this Court
concluded that “the challenged order fails to contain a ‘clear and definite
command’ sufficient to notify a party of his or her required conduct and is not
enforceable via contempt.” Id. at 1111 (quoting Miranda v. Miranda, 566 So. 2d
16, 18 (Fla. 4th DCA 1991)); see also Wilcoxon, 132 So. 3d at 287 (finding that
trial court erred in holding wife in contempt of order which “instructed that ‘[t]he
Former Wife’s current husband shall not be present anywhere that the Former
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Husband is’” because the order “was not specific enough as to what Former Wife’s
duties were in regard to her current husband”); Marcus v. Marcus, 902 So. 2d 259,
263 (Fla. 4th DCA 2005) (reversing order finding wife in contempt and concluding
that the “temporary relief order was not specific enough to put the wife on notice
of the conduct expected of her when one of the children simply refuses to stay with
the husband and runs away when he is sent there”); Cooley v. Moody, 884 So. 2d
143, 145 (Fla. 2d DCA 2004) (reversing finding of contempt for mother’s failure
to effectuate a transfer of custody where “there is no language in the trial court’s
temporary custody order that directs the Mother to do so” even though “[i]t may
have been the trial court’s intent” to so order); Keitel, 716 So. 2d at 884 (holding
that trial court erred in finding wife in contempt for violating provision that gave
husband “reasonable visitation” when she relocated out of state and stating that
“[a]lthough [husband’s] visitation rights are implicitly obstructed, implied or
inherent provisions of a final judgment cannot serve as a basis for an order of
contempt”); Lawrence v. Lawrence, 384 So. 2d 279, 280 (Fla. 4th DCA 1980)
(“We find that the trial court’s order was not sufficiently explicit and precise with
reference to the time for payment of arrearages to support a conclusion that
appellant willfully or wantonly violated that order.”); Kranis, 313 So. 2d at 139(holding that the trial court abused its discretion in denying the wife’s motion to
vacate contempt order because the final judgement’s provision for the husband’s
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“reasonable rights of visitation” was not “‘explicit and precise’, as a command or
judicial direction to the wife”).
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 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
14
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.”
Keitel, 716 So. 2d at 844. 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.” The Probation Order finding the wife guilty of indirect criminal
contempt therefore must be reversed.
Our sister court’s opinion in Sabatini v. Wigh, 98 So. 3d 244 (Fla. 1st DCA
2012), serves as a useful comparison. In Sabatini, the wife was held in contempt
for her failure to comply with the shared parental responsibility requirements in the
parties’ final judgment of dissolution. Id. at 244-45. Specifically, the final
judgment
directed the parties to share parental responsibility and
jointly determine major decisions affecting the welfare of
15
the child, such as her education. The judgment required
the parties to work cooperatively to resolve any disputes,
and if they were unable to do so on their own, they were
required to consult with a reasonably qualified third party
in an effort to resolve the dispute.
Id. at 245 (emphasis added). The parties agreed to enroll their child in a school
near the husband’s home in Jacksonville. Id. When the wife enrolled the child in a
different school located in Palm Coast without consulting with the husband, the
husband sought an order finding the wife in contempt. Id. The trial court found
that the wife “failed to comply with the shared parental responsibility requirements
of the dissolution judgment by unilaterally enrolling the child in the Palm Coast
school in contravention of the parties’ agreement that the child would be enrolled
in the Jacksonville school near the former husband’s home.” Id. at 245-46. In
affirming the trial court’s finding of contempt, the First District stated that the final
judgment contained a “clear directive,” and held that the trial court did not abuse
its discretion in finding that the wife “willfully failed to comply with the
requirement in the dissolution judgment that she jointly decide issues related to the
child’s education with the former husband.” Id. at 246. Unlike the circumstances
in Sabatini, the Final Judgment in this case does not state that the parties shall
“jointly determine major decisions affecting the welfare of the child[ren],” and we
are unable to conclude that it sets forth a “clear directive” as to the wife’s
requirements in exercising shared parental responsibility regarding nonemergency
16
medical treatment of the children. Cf. Ford, 153 So. 3d at 318 (concluding that
parenting plan included “sufficiently precise commands” such that the wife could
be held in contempt for violating specific provisions).
IV. CONCLUSION
Shared parental responsibility is a “court-ordered relationship,” §
61.046(17), Fla. Stat., and the requirements of that relationship must be stated
explicitly in order to support a finding of contempt on the basis of a party’s willful
refusal to follow its dictates. See Cooley, 884 So. 2d at 145 (“[T]he law also
imposes upon the court the requirement to be explicit and precise in its commands
if strict compliance is to be exacted in the form of a contempt sanction.”). Here,
the provision that the parties “shall share parental responsibility for the children
consistent with Florida Statute” fails to set forth a sufficiently precise command so
as to “put the [wife] on notice of what the [wife] may or may not do.” Keitel, 716
So. 2d at 844.
As a result, the Probation Order finding the wife in indirect criminal
contempt for intentionally refusing to exercise shared parental responsibility
cannot stand. Accordingly, we reverse the Probation Order in its entirety.
Reversed.
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