JAMES A. THORNTON v. AMBER M. THORNTON n/k/a AMBER M. WILDES

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMES A. THORNTON,
Appellant,
v.
AMBER M. THORNTON n/k/a AMBER M. WILDES,
Appellee.
No. 4D22-657
[March 22, 2023]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Jennifer Alcorta Waters, Judge; L.T. Case No.
472015DR000575DRAXMX.
Jonathan Mann and Robin Bresky of Schwartz Sladkus Reich
Greenberg Atlas LLP, Boca Raton, for appellant.
Craig A. Boudreau, West Palm Beach, for appellee.
WARNER, J.
Appellant Father appeals an order granting Appellee Mother’s revised
amended motion for contempt. The court found the Father in contempt
for violations of the agreed parenting plan incorporated into their final
judgment of dissolution despite the fact that the parents had resolved
some of their disputes through parenting coordination pursuant to section
61.125, Florida Statutes (2020). To the extent that the court found the
Father in contempt for matters resolved through parenting coordination
agreements, we reverse. To the extent that the parental coordination
agreements did not cover their disputes, the trial court did not abuse its
discretion in finding the Father in contempt.
Facts
The parents divorced in December of 2018. The final judgment of
dissolution included a marital settlement agreement, incorporating a
parenting plan for the parents’ two children. The plan provided for equal
timeshare with the children with a weekly rotation, and the parents were
to confer on all major parenting decisions. Some specific requirements of
the agreement included provisions that: 1) the parent with timesharing
would transport the children to their sporting activities; 2) the parent
without timeshare on a child’s birthday was entitled to spend two hours
with that child on his or her birthday; 3) a parent traveling with the
children out of state must provide the other with a detailed travel itinerary;
4) the parent who did not have timesharing would be allowed to talk to the
children between seven and eight each evening; and 5) the Father would
provide and pay for cell phones for the children and the parents would
facilitate communication between the children and the non-custodial
parent.
From the beginning, the parents had many difficulties co-parenting.
Within a year of their divorce, the Mother filed her original motion for
contempt. The Mother claimed the Father had violated provisions of the
plan by unilaterally withdrawing the children from sports, by not providing
her with a detailed itinerary when he took the children on out-of-state
trips, by not making sure the children communicated with her at least
once a day during the Father’s timeshare, by refusing to communicate
directly with her on the phone, and by refusing to provide their daughter
with a cell phone.
To resolve some of these disputes, the court granted the Father’s
request to appoint a parenting coordinator. The parents met with the
parenting coordinator for five months and entered into sixteen written
agreements at these sessions. Many of these agreements involved
implementing better communication, both between the children and the
noncustodial parent and between the parents themselves. In January
2021, the parenting coordinator informed the court she was unwilling to
continue working with the parents.
In February 2021, the Mother filed an amended motion for contempt
against the Father. The Mother did not delete any previous allegations
and brought several new allegations, essentially claiming that even after
the parenting coordinator sessions, the Father continued to engage in the
same conduct that led to her original contempt motion.
The Mother alleged that the Father had prevented the children from
participating in their respective sports activities in the fall of 2018, the
spring of 2019, and the fall of 2020. The Mother also alleged that the
Father had failed to provide her with a detailed itinerary for his trip to
Idaho with the children, and she claimed that she had no contact with the
children while they were away.
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Further, the Mother claimed that the Father would not let either child
use a cell phone during his timesharing, and refused to pay for the
children’s cell service. She also alleged that she had to purchase a
cellphone for one child and that the Father did not facilitate phone contact
with her during his timeshare, in violation of the parenting plan. The
Mother claimed she had no contact with the daughter and only limited
contact with the son during the Father’s timeshare. Finally, she alleged
that in January 2021, the Father took the children out of town during their
son’s birthday weekend in violation of the parenting plan.
After a lengthy contempt hearing, the court found the Father in
contempt for: 1) refusing to take the children to their extracurricular
activities; 2) refusing to provide a detailed itinerary when he took the
children on out-of-state vacations; 3) preventing the Mother from spending
time with the children on their birthdays; 4) refusing to communicate with
the Mother over the phone; and 5) failing to facilitate communication
between the Mother and the children. To cure the contempt, the court
ordered the Father to: 1) provide the children each with cell phones; 2)
facilitate communication by having the children answer calls from the
Mother or require them to call the Mother every day; 3) provide detailed
itineraries for travel with the children, with specific locations of stays, and
specific flight information; 4) transport the children to all extracurricular
activities; 5) be the only adult to communicate with the Mother with
respect to the children; and 6) allow the Mother makeup timesharing with
the children on the next birthday which falls within the Father’s time
sharing. The Father appeals.
Analysis
The Father contends that the court erred in holding him in contempt,
because any violations were not willful, and many of the violations
concerned agreements that were subsequently modified with the parenting
coordinator. We agree that the court could not hold the Father in
contempt for communications issues that were resolved with the parenting
coordinator. With respect to the other issues not resolved with the
parenting coordinator, we conclude the court did not abuse its discretion
in finding the Father in contempt for willfully violating the parenting plan.
Section 61.125 allows the court to refer disputes to a parenting
coordinator as a form of alternative dispute resolution. The statute
provides:
The purpose of parenting coordination is to provide a child-
focused alternative dispute resolution process whereby a
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parenting coordinator assists the parents in creating or
implementing a parenting plan by facilitating the resolution of
disputes between the parents by providing education, making
recommendations, and, with the prior approval of the parents
and the court, making limited decisions within the scope of
the court’s order of referral.
§ 61.125(2), Fla. Stat. (2020). The court may refer a dispute to a parenting
coordinator to assist the parties in resolving disputes regarding the
parenting plan. § 61.125(3), Fla. Stat. (2020). The marital settlement
agreement in this case also authorized parental coordination as an
alternative dispute mechanism.
To resolve the issues raised in the Mother’s the motion for contempt,
the Father requested the parties use a parenting coordinator. It does not
appear that the Mother objected, and the court granted the Father’s
request. The parties made sixteen agreements at the parenting
coordinator sessions, which were admitted into evidence. Most of these
agreements involved how and when the children would communicate with
the Mother.
Nevertheless, when the Mother filed a renewed motion for contempt,
she asserted those same complaints ignoring the agreements reached.
The entire purpose of parenting coordination would be defeated if a parent
could ignore any agreements when pursuing a motion for contempt. For
that reason, the trial court erred in holding the Father in contempt for his
prior conduct that was the subject of the parenting coordination
agreements.
“‘[T]he purpose of a civil contempt proceeding is to obtain compliance
on the part of a person subject to an order of the court.’” Wilcoxon v. Moller,
132 So. 3d 281, 286 (Fla. 4th DCA 2014) (alteration in original) (citation
omitted). Here, the Mother and the Father resolved several of their issues
with the parenting coordinator, making modifications to their
communication agreements. Thus, having satisfied the purpose of civil
contempt, the Mother could not renege on their agreements and request
the court to hold the Father in contempt for prior conduct already
addressed. The court erred in finding contempt and ordering a “purge”
provision contradicting the agreements the parties reached at parenting
coordination.
However, even with parenting coordination, the parents did not reach
any written agreement regarding the children’s participation in sports,
detailed itineraries for out-of-state travel, or the noncustodial parent’s
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visitation with a child on his or her birthday. As to those matters, the
court heard testimony from multiple witnesses regarding the parents’
difficulties. The court’s findings are based upon competent substantial
evidence and the court’s credibility determinations. While the Father
contends that during parental coordination the parties orally agreed to
strike the birthday agreement, the court accepted the Mother’s testimony
that she did not agree to any modification. The court did not err in finding
the Father in contempt on these issues.
Conclusion
For the foregoing reasons, we affirm the order holding the Father in
contempt and providing purge provisions as to the birthday visitation, the
out-of-state travel, and the children’s extracurricular activities. We
reverse the order of contempt and purge provisions as to the
communications issues, as these were the subject of the parenting
coordination agreements.
Affirmed in part and reversed in part.
KLINGENSMITH, C.J., and CIKLIN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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