CHAD GODWIN v. STEPHANIE GODWIN n/k/a STEPHANIE ANN FESTA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHAD GODWIN,
Appellant,
v.
STEPHANIE GODWIN n/k/a STEPHANIE ANN FESTA,
Appellee.
No. 4D18-2228
[May 15, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Kathleen J. Kroll, Judge; L.T. Case No. 50-2012-DR-
012483-XXXX-NB.
Christen C. Ritchey of Johnson & Ritchey, P.A., Boca Raton, for
appellant.
Jennifer Labbe of Trial Lawyers Group, Wellington, for appellee.
CONNER, J.
In this case, Chad Godwin (“the Former Husband”) and Stephanie
Godwin n/k/a Stephanie Ann Festa (“the Former Wife”), filed competing
motions for contempt, each alleging the other violated provisions of the
final judgment regarding shared parental responsibility for their minor
children. The trial court granted each party’s motion in part, adjudicating
both parties in contempt of court.
The Former Husband appeals the order adjudicating him in contempt,
asserting two grounds for reversal. The Former Husband argues the trial
court erred by: (1) finding him in contempt where the parties’ marital
settlement agreement and the final judgment did not contain language
which clearly prohibited the alleged contemptuous conduct; and (2)
improperly granting a modification of the parties’ marital settlement
agreement and the final judgment without the Former Wife filing a proper
petition for modification. Additionally, the Former Husband appeals the
order denying his request for attorney’s fees and costs, after the trial court
found the Former Wife in contempt. We agree with the Former Husband’s
arguments, and explain our analysis for reversing the trial court’s rulings
and remanding for further proceedings.
Background
The marriage between the parties was dissolved in 2013. A marital
settlement agreement (“MSA”) was incorporated into the final judgment,
including provisions for timesharing of the parties’ two minor children.
The parties subsequently executed multiple stipulations modifying their
MSA. Among these were the parties’ Second and Fourth Stipulations,
which were adopted by corresponding orders modifying the original final
judgment.
The Second Stipulation clarified that all communications between the
parties must only concern issues related to the children, and for non-
emergency matters, must only take place through the
OurFamilyWizard.com website, and must be professional, factual, and
non-confrontational.
The Fourth Stipulation modified the provisions of the original MSA
concerning shared parental responsibility and decision-making authority.
Subsection (a) of the stipulation provided that the parties would have
shared parental responsibility and that they would confer and attempt to
agree on major decisions involving the children, but that if they were
unable to agree, the Former Husband would have the decision-making
authority with respect to the children’s education, medical, and extra-
curricular activities. Subsection (b) of the stipulation emphasized that
regardless of decision-making authority, the Former Wife would continue
to be informed of medical appointments, school functions, and extra-
curricular activities and to be entitled to attend. Subsection (b) further
stated:
The parent with whom the children are enjoying timesharing,
or that parent’s designee, shall be responsible to transport the
children to their activities or appointments. In the event the
parent, or that parent’s designee, enjoying timesharing is not
able to transport the children to the [sic] their activities or
appointments, the other parent (or his/her designee) shall be
permitted to transport the children.
(emphases added).
Additionally, the MSA and modifying stipulations contain provisions
regarding the award of attorney’s fees and costs. The parties’ original MSA
provided:
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In the event of any litigation between the parties to enforce the
terms of this agreement, the non-defaulting party shall be
entitled as a matter of right to an award of attorneys’ fees and
costs associated with such litigation from the defaulting party.
More specifically, the parties’ Second Stipulation contained the following:
All terms, provisions, obligations and conditions of this
agreement are enforceable through the contempt powers of
this court. More specifically, all monetary
contribution/reimbursement provisions and any obligations
to consent, cooperate and/or execute and provide documents
are enforceable by the full contempt powers of this court. In
an effort to minimize and reduce future non-compliance and
potential future litigation, the parties specifically
acknowledge, agree and stipulate that if either party is
required to file a court action to enforce the provisions of this
agreement/stipulation or to compel the other party to comply
with any of the terms, obligations and conditions of this
stipulation that party shall be entitled to 100% of their attorney
fees and costs incurred in such action, regardless of need or
ability to pay. Additionally, if either party is able to provide
proof/evidence that the other party has failed to comply with
this agreement or that the other party has violated this
agreement (i.e. unauthorized communication, improper
communication, failure to execute documents or cooperate as
required, etc.) then the party who has violated the
agreement shall pay 100% of the attorney fees incurred
in establishing such violation. In any such
case/matter/issue the court shall determine and decide, and
include such finding in any order/report, which party has
violated any particular term of this agreement and shall
specifically order that party to pay the other parties [sic]
attorney [sic] fees/costs associated with such
action/matter/issue(s).
(emphases and bold emphasis added). Likewise, the Fourth Stipulation
provided:
In the event of any litigation between the parties to enforce the
terms of their written agreements adopted as Orders of this
Court, including this Stipulation, the prevailing party shall be
entitled to an award of attorney fees and costs.
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The Former Husband filed a motion for civil contempt and enforcement
against the Former Wife, alleging the Former Wife violated the terms of
subsection (b) of the Fourth Stipulation by refusing to transport the
children to their dance and football activities during her timesharing, and
failing to allow the Former Husband to transport them, causing the
children to repeatedly miss these activities. The Former Husband
requested attorney’s fees in connection with bringing the motion.
Thereafter, the Former Husband filed a second motion for contempt and
enforcement, in which he alleged that the Former Wife violated the Second
Stipulation by communicating through OurFamilyWizard.com about
issues not specific to the children. The Former Husband again requested
attorney’s fees.
Subsequently, the Former Wife filed her own motion for contempt,
alleging that the Former Husband repeatedly violated subsection (a) of the
Fourth Stipulation by failing to confer and consult with her on various
decisions involving the children’s schooling, extra-curricular, and medical
issues and appointments. The motion also complained of an incident in
which the Former Husband brought his girlfriend to their daughter’s
doctor’s appointment that resulted in an altercation between the Former
Wife and the girlfriend at the doctor’s office, whereby both were asked to
leave. The Former Wife argued the Former Husband routinely appoints
his girlfriend “as a pseudo medical care proxy to appear at [doctor’s]
appointments and intrude in medical decision making for the minor
children[.]” The Former Wife argued this was a violation of HIPAA1 and
her right of privacy. In addition to seeking contempt sanctions for violation
of subsection (a) of the Fourth Stipulation, the Former Wife requested the
trial court’s “equitable intervention” in enforcing the provisions of
subsections (a) and (b) by “striking the provision [of subsection (b)]
regarding appointing designees as it is in direct violation of the Florida
Constitutional Right to Privacy.” The Former Wife also requested
attorney’s fees.
The parties’ competing motions for contempt and enforcement were
heard at the same time. At the hearing, with regards to the Former Wife’s
request to strike the provision in the Fourth Stipulation with reference to
the appointment of a designee, the trial court reasoned:
Significant other, I do not interpret this that she can do or he
can do anything but transport. That is period. And I have no
problem with anybody that’s safe for the kids. You both work,
1HIPAA refers to the Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104–191, 110 Stat. 1936 (1996).
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so okay, that’s going to happen. Transport means that you sit
in the -- you transport, you take the kid to the event.
....
So that’s it. Transport is it. Can’t be in the room with the
kids, doctors or can’t be in parent/teacher conference, can’t
hold the parent/teacher conference without one of the parents
being there. My views are different once you marry somebody,
but significant other, that’s what that is, to transport.
Thereafter, the trial court entered its order granting in part and denying
in part both parties’ motions. The trial court granted the Former
Husband’s motion in part, finding the Former Wife in contempt because
her OurFamilyWizard.com emails violated the provisions of the Second
Stipulation. As for the Former Wife’s motion, the trial court found the
Former Husband in contempt “for having his significant other in
attendance at the parties’ daughter’s . . . doctor’s appointment and acting
beyond transport.” However, the trial court denied the Former Wife’s
request to strike the provision of the Fourth Stipulation regarding
designees. Instead, the trial court ordered that the provision is
clarified to mean that transport is the sole function of a party’s
significant other. A significant other may transport the
children to doctor’s appointments but cannot be in the room
with the children or attend parent teacher conferences.
The trial court denied both parties’ requests for attorney’s fees.
The Former Husband moved for a rehearing, asserting, in part, that he
was erroneously held in contempt for an action not prohibited by any court
order or stipulation of the parties. He also argued the court’s “clarification”
of the relevant portion of the Fourth Stipulation was effectively a
modification of the MSA and final judgment, for which no petition for
modification had been filed. The Former Husband further argued he was
entitled to attorney’s fees. The trial court denied the motion for rehearing.
The Former Husband gave notice of appeal.
Appellate Analysis
The Former Husband appeals the finding and adjudication of contempt
against him, as well as the denial of an award of attorney’s fees and costs
in his favor because the trial court found the Former Wife in contempt for
violating the MSA and final judgment. We explain our determinations and
reasoning.
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Adjudication of Contempt Against Former Husband
On appeal, the Former Husband argues that the trial court erred
because it held him in contempt for actions that did not violate the terms
of the parties’ final judgment or any subsequent order modifying the initial
final judgment. The Former Husband also argues that in order to find him
in contempt, the trial court, in essence, rewrote the provision in the Fourth
Stipulation regarding designees, which was error because the revision
granted relief to the Former Wife that she did not request. The Former
Husband’s arguments raise issues of legal error.
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)).
“However, . . . ‘[a] judge cannot base contempt upon noncompliance with
something an order does not say.’” Id. at 748-49 (alteration in original)
(quoting DeMello, 914 So. 2d at 1093). “Under such circumstances, the
standard of review is legal error, not abuse of discretion.” Id. (quoting
DeMello, 914 So. 2d at 1093).
“For a person to be held in contempt of a court order, the language of
the order must be clear and precise, and the behavior of the person must
clearly violate the order.” Reder v. Miller, 102 So. 3d 742, 743 (Fla. 2d DCA
2012) (quoting Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992)).
Additionally, we have held that:
[W]hen 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. Even though a
judgment of contempt is clothed with a presumption of
correctness, “[o]ne may not be held in contempt of court for
violation of an order or a provision of a judgment which is not
clear and definite so as to make the party aware of its
command and direction.” Lawrence v. Lawrence, 384 So. 2d
279[, 280] (Fla. 4th DCA 1980) (second alteration in original)
(citation omitted).
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Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA 1998). Furthermore,
“implied or inherent provisions of a final judgment cannot serve as a basis
for an order of contempt.” Id.We have previously reversed orders of contempt where the underlying
order failed to specifically preclude the actions challenged. See, e.g.,
Wilcoxon v. Moller, 132 So. 3d 281, 287 (Fla. 4th DCA 2014) (finding that
the trial court committed reversible error by entering order finding ex-wife
in contempt of order providing, that her “current husband shall not be
present anywhere that” ex-husband was, in part because the prior order
was not specific enough, as to what ex-wife’s duties were in the event that
current husband refused to stay away from ex-husband, to support any
judgment of contempt); Harris v. Hampton, 70 So. 3d 747, 749 (Fla. 4th
DCA 2011) (holding that, while directing mother to enroll the child may
imply that she is responsible for paying tuition, “implied or inherent
provisions of a final judgment cannot serve as a basis for an order of
contempt” (quoting Keitel, 716 So. 2d at 844 (reversing the trial court’s
order finding former wife in contempt and reasoning that her relocation
out of state with children, implicitly obstructing former husband’s
visitation rights, could not serve as basis for order of civil contempt, where
final judgment of dissolution did not contain express provision prohibiting
relocation))).
In this case, the trial court found the Former Husband to be in
contempt “for having his significant other in attendance at the parties’
daughter’s . . . doctor’s appointment and acting beyond transport.”
However, the Former Husband correctly points out that nowhere in the
final judgment or the orders adopting the parties’ subsequent stipulations
was the Former Husband precluded from allowing his significant other to
attend medical appointments. Additionally, the language of subsection (b)
of the Fourth Stipulation does not state that the significant other’s
participation is limited to transport. Nor does it state that the Former
Husband must prevent his significant other from attending or ensuring
her contact with the children is limited to transporting them to their
appointments. Thus, the Former Husband is correct that the trial court
erred in holding him in contempt for having his significant other at his
daughter’s doctor’s appointment and acting beyond transport.
Furthermore, to the extent the trial court based its finding of contempt
upon the implication that the significant other’s activities were so limited,
such would also have been erroneous, where, as discussed above, implied
or inherent provisions of a final judgment cannot serve as a basis for an
order of contempt.
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Additionally, the Former Husband contends the trial court also erred
by awarding the Former Wife relief she did not request in her motion and
by improperly rewriting the terms of the parties’ Fourth Stipulation. It is
well settled that “courts are not authorized to award relief not requested
in the pleadings. To grant unrequested relief is an abuse of discretion and
reversible error.” Worthington v. Worthington, 123 So. 3d 1189, 1190 (Fla.
2d DCA 2013) (quoting Abbott v. Abbott, 98 So. 3d 616, 617-18 (Fla. 2d
DCA 2012)). The caselaw also makes clear that in family cases, provisions
of final judgments pertaining to timesharing generally cannot be modified
unless a party files a petition seeking modification or a party files a written
stipulation by the parties asking the court for the modification. See id.Moreover, it cannot be said, based on the record in this case, that the issue
was tried by consent. Thus, we agree with the Former Husband that the
trial court erred by granting relief without filing and serving a proper
petition for modification.
Denial of Award of Attorney’s Fees and Costs to Former Husband
The Former Husband argues that the trial court erred in denying his
request for attorney’s fees and costs incurred in enforcing the MSA, after
finding the Former Wife in contempt and in violation of a provision of the
MSA. To the extent Former Husband’s appeal involves interpretation of
the MSA, our review, as with any contract, is de novo. Conway v. Conway,
111 So. 3d 925, 927 (Fla. 1st DCA 2013).
As discussed above, the parties’ MSA, as modified by stipulations,
contained provisions regarding the award of attorney’s fees and costs for
enforcement. Specifically, the Second Stipulation contains a clear and
unambiguous provision for attorney’s fees to the party who establishes a
violation of the agreement:
If either party is required to file a court action to enforce the
provisions of this agreement/stipulation or to compel the
other party to comply with any of the terms, obligations and
conditions of this stipulation that party shall be entitled to
100% of their attorney fees and costs incurred in such action,
regardless of need or ability to pay. Additionally, if either party
is able to provide proof/evidence that the other party has failed
to comply with this agreement or that the other party has
violated this agreement (i.e. unauthorized communication,
improper communication, failure to execute documents or
cooperate as required, etc.) then the party who has violated the
agreement shall pay 100% of the attorney fees incurred in
establishing such violation. In any such case/matter/issue
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the court shall determine and decide, and include such
finding in any order/report, which party has violated any
particular term of this agreement and shall specifically order
that party to pay the other parties [sic] attorney [sic]
fees/costs associated with such action/matter/issue(s).
(emphases added). Notably, the Second Stipulation is arguably more
specific and detailed than the two other provisions of the MSA and Fourth
Stipulation relating to attorney’s fees and costs for enforcement, which
state in general terms that the prevailing party is entitled to fees and costs.
In the instant case, the trial court found the Former Wife in contempt of
the provision in the Second Stipulation regarding communication between
the parties because her OurFamilyWizard.com emails violated the terms
therein. However, the trial court nevertheless denied the Former
Husband’s request for attorney’s fees.
“[I]t 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.” Taylor v. Lutz, 134 So. 3d 1146, 1148 (Fla. 1st
DCA 2014). “Provisions in ordinary contracts awarding attorney’s fees and
costs to the prevailing party are generally enforced.” Lashkajani v.
Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005). Notably, “[t]rial courts do
not have the discretion to decline to enforce such provisions, even if the
challenging party brings a meritorious claim in good faith.” Id. “Where an
agreement’s terms are unambiguous, a court must treat the written
instrument as evidence of the agreement’s meaning and the parties’
intention.” Avellone v. Avellone, 951 So. 2d 80, 83 (Fla. 1st DCA 2007).
Because the plain language of the Second Stipulation clearly and
unambiguously provided for an award of attorney’s fees to the party
required to file a court action to enforce the provisions of the stipulation,
we determine the trial court erred in denying the Former Husband’s
request for attorney’s fees. Presumably, the trial court may have denied
both parties’ requests for fees because it found each to be in contempt of
different orders. However, given the above-quoted language coupled with
the similar, but more general terms of the MSA and Fourth Stipulation, we
reverse the trial court’s denial of Former Husband’s request for attorney’s
fees and costs.
Conclusion
Having concluded the trial court erred by: (1) adjudicating the Former
Husband in contempt for allowing his significant other to attend a doctor’s
appointment for the minor child; (2) modifying the terms of the Fourth
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Stipulation of the MSA and final judgment without the Former Wife filing
a proper petition for modification; and (3) denying the Former Husband’s
motion for attorney’s fees and costs incurred to obtain an adjudication
that the Former Wife was in contempt for violating the MSA and final
judgment, we reverse the provisions of the orders appealed and remand
for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
GROSS and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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