Cheek v. Hesik
73 So. 3d 340
Fla. Dist. Ct. App.2011Background
- Appellant (former wife) and appellee (former husband) were divorced in Illinois (2007); wife awarded custody, husband noncustodial visitation under phased plan.
- Wife relocated with the child to Florida; Illinois dissolution judgment domesticated in Florida; case moved to Duval County, Florida.
- Since 2008 there have been repeated contempt proceedings alleging wife denied visitation and alienated the child from husband.
- Sixth and seventh motions for contempt ( filed 2010–2011) claimed ongoing denial of visitation; court deferred ruling at times and warned consequences for noncompliance.
- May 2, 2011 order granted makeup time-sharing: husband to have 100% time-sharing for 150 days with limited telephonic contact for wife; custody effectively shifted to husband during that period.
- Court later denied wife's motion for reconsideration and, on appeal, the court affirmed criminal contempt but reversed the makeup time-sharing orders and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether makeup time-sharing was justified by best interests. | Wife argues lack of best-interest findings invalidates makeup time-sharing. | Husband contends makeup time-sharing is authorized to remedy noncompliance and restore relationship. | Reversed for lack of best-interest findings; remanded. |
| Whether the trial court had authority to order makeup time-sharing and custody change. | Authority exists under statutes and prior orders to award makeup time-sharing. | Court could impose makeup time-sharing to remedy violations. | Authority acknowledged, but requires best-interest findings; failure to make them requires reversal. |
| Whether the criminal contempt finding against wife is supported by the record. | Record shows willful denial of visitation; contempt appropriate. | Contempt based on past behavior; proper sanctions otherwise. | Affirmed criminal contempt. |
Key Cases Cited
- Schutz v. Schutz, 581 So.2d 1290 (Fla. 1991) (affirmative obligation to encourage and nurture child–noncustodial relationship)
- LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999) (transfer of custody as punishment inappropriate absent best-interests finding)
- Manuel v. Manuel, 489 So.2d 183 (Fla. 1st DCA 1986) (custody/visitation remedies require consideration of child’s best interests)
- Clark v. Clark, 825 So.2d 1016 (Fla. 1st DCA 2002) (court must find at least that custody determination is in the best interests)