IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JACQUELINE VARNER,

Appellant,

v. Case No. 5D23-107

LT Case No. 2013-DR-002635

BRIAN VARNER,

Appellee.

________________________________/

Opinion filed February 17, 2023 

Appeal from the Circuit Court 

for Duval County, 

Suzanne Bass, Judge. 

Jason Brian Phillips, of J. 

Brian Phillips, P.A., Orlando,

for Appellant. 

No Appearance for Appellee. 

PER CURIAM. 

Jacqueline Varner (“Mother”) appeals the trial court’s order finding her 

in contempt and awarding Brian Varner (“Father”) seventeen make-up 
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visitation days with the parties’ minor child. We reverse the finding of 

contempt and dismiss the challenge to the make-up visitation as moot.

I.

The parties divorced in 2015. As part of the second amended final 

judgment of divorce entered on September 28, 2015, the trial court issued a 

parenting plan for the parties’ child. Among its other provisions, the parenting 

plan designated Palm Coast as the meeting place where the parties would 

exchange the child for timesharing purposes. The record indicates that the 

parenting plan from the second amended final judgment remains in effect.1

On April 11, 2022, the trial court entered the contempt order that is the 

subject of this appeal. Therein, the court found Mother in contempt because 

“she has been returning to Columbia County on a regular basis” without 

bringing the parties’ child with her so that Father could exercise timesharing. 

The order also suggests the court found Mother in contempt because she 

did not personally transport the child to the designated meeting spot for the 

March 11, 2022 timesharing appointment. In addition to finding Mother in 

1 The trial court resolved any uncertainty on this point on March 7, 

2022, when it entered an order that, among other things, reinstated the 

parenting plan in the “Second Amended Final Judgment of Dissolution 

entered on September 28, 2015.”
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contempt, the court awarded Father seventeen overnight visits as make-up 

timesharing.

II.

A court may not hold a party in contempt for violating a court order 

unless the order is clear and precise, and the party’s behavior is a clear 

violation thereof. Fernandes v. Fernandes, 114 So. 3d 972, 976 (Fla. 5th 

DCA 2012). The court must find that the party has the present ability to 

comply with the order but willfully refuses to do so. Wolf v. Wolf, 296 So. 3d 

479, 485 (Fla. 2d DCA 2020).

“A trial court’s determination that a party is in willful contempt of court 

must be based upon competent substantial evidence and is subject to an 

abuse of discretion standard of review.” Pace v. Pace, 295 So. 3d 898, 900 

(Fla. 5th DCA 2020). However, a legal error standard applies when the trial 

court based its contempt ruling on an erroneous reading of the prior court 

order. DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005).

Here, the trial court found Mother in contempt because “she has been 

returning to Columbia County on a regular basis” but has not tried “to bring 

the minor child with her or to make him available to the Former Husband for 

timesharing.” Mother argues that because the parenting plan does not 

require her to make the child available for timesharing whenever Mother 
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returns to Columbia County, the court erred by finding this behavior 

contemptible. We agree.

The parenting plan provides that timesharing exchanges “shall occur 

at Palm Coast, Florida unless both parties agree in advance to a different 

meeting place.” The parenting plan makes no mention of Columbia County. 

Because Mother’s failure to make the child available for timesharing 

whenever she traveled to Columbia County was not a violation of a prior 

court order, the court erred by holding Mother in contempt on that basis. See 

Fernandes, 114 So. 3d at 976; Turk v. Turk, 189 So. 3d 359, 359 (Fla. 4th 

DCA 2016) (“We agree with the father’s interpretation of the agreement, and 

because a person cannot be held in contempt for failure to comply with 

something that a judicial order does not say, we reverse.”).

Mother also argues that because she was subject to an order in a 

criminal case that barred her from having contact with Father, she cannot be 

held in contempt for failing to personally deliver the child to Father for the 

March 11, 2022 timesharing exchange. Indeed, the court’s contempt order 

found that Mother “has a pending misdemeanor case in Columbia County, 

Florida for domestic battery wherein the Former Husband, Brian Varner is 

the victim. The Mother has a no contact order with the Father as a result of 

this case.”
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To the extent that such was required by the parenting plan,2 Mother 

did not appear—given the court’s finding about the no-contact order—to

have the present ability to personally deliver the child to Father for 

timesharing. Therefore, before finding Mother in contempt on that basis, the 

court should have made findings about the effect of the no-contact order, the 

existence of which the court expressly acknowledged in its order of 

contempt. See Dep’t of Child. & Fams. v. R.H., 819 So. 2d 858, 862 (Fla. 5th 

DCA 2002) (“Florida courts also require that in order to find an individual in 

contempt, the trial court must find that the contemnor had the ability to 

comply with the previous court order.”); see also § 903.047(1)(b), Fla. Stat. 

(2022) (setting forth the general parameters of no-contact orders in criminal 

cases).

As for the award of make-up timesharing, section 61.13 instructs the 

trial court to award a parent with compensatory timesharing in a manner 

consistent with the child’s best interests when the other parent “refuses to 

honor the time-sharing schedule in the parenting plan without proper cause.” 

2 Mother also argues that the parenting plan is not clear and definite 

enough to hold her in contempt for failing to personally transport the child to 

the timesharing exchange. See DeMello, 914 So. 2d at 1094 (“Implied or 

inherent provisions of a final judgment cannot serve as a basis for an order 

of contempt.”). However, the record does not reflect that Mother preserved 

this specific argument for review. See Tillman v. State, 471 So. 2d 32, 35 

(Fla. 1985).
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§ 61.13(4)(c), Fla. Stat. (2022). Mother argues that the trial court erred by 

not making findings about whether the manner of make-up timesharing here 

served the child’s best interests. See Cheek v. Hesik, 73 So. 3d 340, 343–

44 (Fla. 1st DCA 2011). However, because there is no transcript of the 

contempt hearing, the lack of best interest findings in the written order is not 

reversible error. See Nunes v. Nunes, 112 So. 3d 696, 701–02 (Fla. 4th DCA 

2013).

Furthermore, because the scheduled dates of the make-up 

timesharing have already occurred, this issue is now moot. See Cancellari v. 

Rance, 779 So. 2d 373, 374 (Fla. 2d DCA 2000) (dismissing as moot the

mother’s appeal of a trial court order that awarded the father ninety days of 

make-up visitation because, even though there were “substantial problems” 

with the order, the period of make-up visitation had since ended). However, 

this does not also render moot the portion of the court’s order that found 

Mother in contempt. See Marconi v. Walther, 819 So. 2d 936, 938 (Fla. 2d 

DCA 2002) (rejecting a mootness argument because “it would be unfair to 

allow an order in the court file to continue to show that the husband had been 

found in contempt for failure to meet a financial obligation when the finding 

of contempt was improper”); see also Baldwin v. Baldwin, 204 So. 3d 565, 

567 (Fla. 5th DCA 2016) (dispensing with mootness concerns and 
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remanding with instructions to vacate a contempt order because the 

underlying issue was likely to recur).

III.

In sum, we reverse the trial court’s finding of contempt and remand 

with directions to vacate that portion of the court’s order. We dismiss 

Mother’s challenge to the award of make-up timesharing as moot. Finally, 

we also remand Mother’s motion for appellate attorney’s fees to the trial court 

with instructions to award those fees if Mother establishes her entitlement to

them under section 61.16, Florida Statutes. See Abouzaid v. Helmy, 326 So. 

3d 209, 209–10 (Fla. 5th DCA 2021).

REVERSED and REMANDED in part; DISMISSED in part.

MAKAR, EDWARDS and JAY, JJ., concur.