Nunes v. Nunes
112 So. 3d 696
Fla. Dist. Ct. App.2013Background
- Mother Kara Nunes and father Alexander Nunes divorced; final judgment incorporated a marital settlement requiring mother to provide time-sharing during summer and school holidays after relocation.
- Mother relocated to Texas with child; father filed a contempt motion July 10, 2012 for failure to provide summer time-sharing.
- Notice of contempt hearing was sent; first hearing canceled due to Tropical Storm Isaac; second notice sent for September 12 hearing.
- Mother claims she did not learn of the rescheduled hearing until September 6 and did not attend; no transcript of the hearing was provided.
- Sept. 21, 2012 order found mother in civil contempt, requiring makeup time-sharing and payment of father’s attorney fees.
- Mother appealed on grounds of notice, lack of explicit factual findings, and best-interests consideration; trial court denied stay and rehearing requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was notice of the contempt hearing sufficient? | Nunes contends notice was inadequate due to delayed delivery. | Nunes argues proper notice was given; nonpreserved issue. | Issue not preserved; no review. |
| Did the contempt order contain sufficient findings of willful noncompliance? | Noncompliance not clearly defined in order; requires explicit findings. | Order sufficiently detailed; transcript may clarify any oral findings. | Order sufficiently detailed; lack of transcript prevents reversal. |
| Was makeup time-sharing properly considered in light of the child’s best interests? | Written order failed to address best interests explicitly. | Statute requires consideration of best interests; explicit findings in writing not mandatory. | Court considered best interests; failure to write explicit findings not fatal. |
Key Cases Cited
- Harris v. Hampton, 70 So.3d 747 (Fla. 4th DCA 2011) (presumption of correctness; abuse of discretion or fundamental error standard)
- DeMello v. Buckman, 914 So.2d 1090 (Fla. 4th DCA 2005) (contempt requires clear order and ability to comply)
- Cheek v. Hesik, 73 So.3d 340 (Fla. 1st DCA 2011) (best interests must be considered; writing need not spell it out)
- Delivorias v. Delivorias, 80 So.3d 352 (Fla. 1st DCA 2011) (post-Cheek: lack of explicit findings not fatal where best interests considered)
- Whelan v. Whelan, 736 So.2d 732 (Fla. 4th DCA 1999) (absence of transcript prevents reversal; cannot assume error)
- Campbell v. Campbell, 100 So.3d 763 (Fla. 4th DCA 2012) (trial court lacking jurisdiction to rule on post-appeal motions)
- Sunset Harbour Condo. Ass’n. v. Robbins, 914 So.2d 925 (Fla. 2005) (notice standards; courtesy observations for hearings)