VANESSA LALOGGIA-VONHEGEL, APPELLANT,
v.
WILLIAM VONHEGEL, APPELLEE
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In this post-dissolution family law case, the trial court found Ms. LaLoggia in contempt of court for relocating to New York in violation of a visitation order and transferred primary custody of the minor children to her ex-husband as punishment. The appellate court affirmed the contempt finding but reversed the custody transfer, holding that a change of custody is not an appropriate sanction for indirect civil contempt absent a finding that such change is in the children's best interest.
The trial court properly found Ms. LaLoggia in contempt for thwarting visitation rights, but the transfer of custody as a sanction was erroneous. A change of custody does not serve the purpose of civil contempt (obtaining compliance) and may penalize the children for the parent's conduct. Additionally, the trial court lacked proper jurisdiction to modify custody because Ms. LaLoggia was not given notice of the amended petition or a hearing on temporary custody, implicating due process concerns.
[1] A transfer of custody is not an appropriate sanction for civil contempt arising from a violation of court-ordered visitation.
[2] A trial court's jurisdiction to hear issues concerning a change in child custody is not invoked or perfected without proper notice of a hearing on an amended petition or…
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Join FLexlaw to unlock all legal intelligence“a transfer of custody as punishment is not an appropriate sanction for contempt”
Establishes the core holding that custody changes cannot serve as contempt sanctions
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Join FLexlaw to unlock all legal intelligenceThe parties divorced in February 1998, with primary custody of two minor children awarded to Ms. LaLoggia. The marital settlement agreement contained …
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CASANUEVA, Judge.
In this post-dissolution proceeding, Vanessa LaLoggia-VonHegel (Ms. LaLog-gia) appeals a final order adjudging her in contempt of court and transferring, as a sanction, the custody of the minor children from her to her former husband, William VonHegel. We affirm the trial court’s finding of contempt, but reverse the change of custody.
In April, 1998, Mr. VonHegel filed a petition to modify the final judgment of dissolution of marriage that had been entered on February 23, 1998.1 The petition sought to modify visitation and reduce child support; the latter was based upon Mr. VonHegel’s assertion of zero income. Ms. LaLoggia answered the petition and counter-petitioned asserting, among other things, that Mr. VonHegel had committed a domestic battery upon her and that he had inconsistently exercised visitation with the minor children by, for example, taking only one child and refusing to take the other. Later, Mr. VonHegel filed a motion seeking to hold Ms. LaLoggia in contempt for interfering with his visitation.
At the hearing on this motion for contempt, the trial court did not find her in contempt but did file an order, dated April 28, 1998, enforcing the visitation schedule in the marital settlement agreement. In June, 1998, Mr. VonHegel filed a second motion for contempt asserting that Ms. LaLoggia had, since the April hearing, relocated to New York for the purpose of denying him visitation. At the same time he moved for leave to amend his petition for modification to change the primary custody of the minor children from Ms. LaLoggia to himself.
On June 25, 1998, a hearing on Mr. VonHegel’s second motion for contempt was held. Ms. LaLoggia did not attend. Ms. LaLoggia’s counsel had previously filed and noticed for hearing on this date a motion to withdraw, which was granted.
The trial court then considered Mr. Von-Hegel’s motion to amend his petition.
The record on appeal does not indicate that this motion was noticed for hearing on June 25, 1998, but the trial court granted the motion at this hearing.
The trial court then turned to Mr. VonHegel’s second motion for contempt. After considering testimony from Mr. VonHegel, and noting that at the earlier hearing in April Mrs. LaLog-gia had indicated to the trial court that she had no difficulty with Mr. VonHegel’s visiting the children, the trial court found that she had relocated to New York without notice to Mr. VonHegel.
The trial court then concluded that her relocation was an effort to thwart Mr. VonHegel’s visitation rights and was in defiance of the court order on visitation of April 28, 1998. Adjudging Ms. LaLoggia in contempt, the trial court, as sanction, transferred primary residential custody of the minor children to Mr. VonHegel, stating:
I therefore find the former wife in willful and indirect civil contempt of court in that her actions in attempting to deprive the former husband of meaningful court-ordered visitation is one of the paramount considerations in determining principal physical residence. I do grant as a sanction that temporary principal physical residence and custody of the children be immediately placed with the former husband.
The question presented is whether the transfer of custody is an appropriate sanction for an indirect civil contempt arising from violation of court-ordered visitation. Under these facts, we hold it is not. First, the general purpose of a civil contempt order is to obtain compliance with the trial court’s initial order. The sanction of changing custody does not coerce compliance; rather, it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct. In comparison, an award of make-up or additional visitation may serve both to redress the wrong to the parent and to effectuate compliance with the court’s authority.
We hold, as did our sister court in Pace v. Solomon, 715 So. 2d 1155 (Fla. 5th DCA 1998), that a transfer of custody as punishment is not an appropriate sanction for contempt. See also Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998).
Next, using Mr. VonHegel’s amended petition for modification of the final judgment as a basis for changing custody implicates due process concerns. The record on appeal does not indicate that Ms. LaLoggia received a notice that the hearing would deal with the amended petition. Rather, Mr. VonHegel’s counsel addressed the amendment of the pleadings to the court as a “housekeeping matter.” Without notice of a hearing on the amended petition or on a motion to award temporary custody of the children to Mr. VonHe-gel, the trial court’s jurisdiction to hear these issues was not invoked or perfected and could not serve as a basis for the trial court’s order transferring custody. See Schnicke v. Schnicke, 533 So. 2d 337 (Fla. 5th DCA 1988); Brady v. Jones, 491 So. 2d 1272, 1273 (Fla. 2d DCA 1986).
Further, on the record before us, there is insufficient evidence to ground a finding that it would be in the children’s best interest to be placed in Mr. VonHe-gel’s custody, even temporarily. The custodial parent’s relocating the children to another state is insufficient by itself to warrant a change in custody. See Hayes v. Hayes, 578 So. 2d 54, 56 (Fla. 2d DCA 1991).
Although there is evidence that at the time of the June 25 hearing Mr. Von-Hegel could then financially afford to support his children as well as place them in day care, this does not meet the extraordinary burden of proving a substantial and material change of circumstances such that it would be detrimental to the children to remain in the custody of Ms. LaLoggia. See Finney v. Giddens, 707 So. 2d 856 (Fla. 2d DCA 1998); Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996).
In conclusion, we agree that the trial court properly adjudged Ms. LaLoggia in contempt for thwarting Mr. VonHegel’s visitation rights. The trial court could have ordered additional or make-up visitation to occur in Florida, if appropriate. However, we hold that changing custody as a sanction for contempt was erroneous.
Affirmed in part, reversed in part and remanded.
NORTHCUTT, A.C.J., and QUINCE, PEGGY A., Associate Judge, Concur. . The final judgment incorporated a marital settlement agreement between the parties. It placed the primary residential care of the minor children with Ms. LaLoggia. Further, it did not impose a residency requirement nor geographical restriction upon her relocation.
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Citator
Cited By (22 total)
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Decker v. Lyle, 848 So. 2d 501 (Fla. 2d DCA 2003)…d the parties on remand, we note that the decision of the trial court on the issue of temporary custody must be based upon the best interests of the child and not as a sanction for the conduct of either of the parties. LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131 (Fla. 2d DCA 1999); O’Neill v. Stone, 721 So. 2d 393 (Fla. 2d DCA 1998); Armstrong v. Panzarino, 812 So. 2d 512 (Fla. 4th DCA 2002). IV.Relief The father argues that we should let the custody- order stand in - order to avoid “unnecessary upheaval…
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Burckle v. Burckle, 915 So. 2d 747 (Fla. 2d DCA 2005)…at relief in her motion for contempt. We agree with both points. This court has held that a transfer of custody as a sanction for one parent’s contempt in failing to abide by a visitation order is not appropriate. See LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131, 1132-33 (Fla. 2d DCA 1999); see also Simpson v. Young, 884 So. 2d 186, 188 (Fla. 2d DCA 2004). Such a sanction does not compel compliance with a court’s earlier order; “rather, it may, in the absence of a finding that such a change is in the best i…
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Yilka de Castro v. Scorpio de Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007)…o comply with visitation order because the proceedings were commenced upon a motion for contempt, not a petition to modify custody, and there was no finding that the modification was in the best interest of the child); LaLoggia-VonHegel v. VonHegel, 732 So. 2d 1131 (Fla. 2d DCA 1999)(finding that in a post-dissolution hearing on the father’s motion to find the mother in contempt for interfering with his visitation rights, the trial court had no jurisdiction to enter an order transferring custody of minor child…
Previewing 3 of 22 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Karie Lynn Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996)
- Moody v. Moody, 721 So. 2d 731 (Fla. 1st DCA 1998)
- Brady v. Jones, 491 So. 2d 1272 (Fla. 2d DCA 1986)
- Myrtice Jane Hayes v. Hayes, 578 So. 2d 54 (Fla. 2d DCA 1991)
- Schnicke v. Schnicke, 533 So. 2d 337 (Fla. 5th DCA 1988)
- Silverman v. Bess Ann Silverman, 715 So. 2d 1155 (Fla. 4th DCA 1998)
- Finney v. Giddens, 707 So. 2d 856 (Fla. 2d DCA 1998)