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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ROCIO MERLIHAN,

Appellant,

v.

DANIEL MCWILLIAM SKINNER, JR.,

Appellee.

Nos. 4D2022-2079 & 4D2023-0185

[March 13, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Peter Holden and Mariya Weekes, Judges; L.T. Case No. 

FMCE17015229. 

Nicole Nicolette Mace and Curt Sanchez of the Law Offices of Curt 

Sanchez, P.A., West Palm Beach, for appellant.

Nancy W. Gregoire Stamper of Birnbaum, Lippman & Gregoire, PLLC, 

Fort Lauderdale, and Jonny Kousa of the Law Offices of Jonny Kousa, P.L., 

Coconut Creek, for appellee.

KLINGENSMITH, C.J.

Appellant Rocio Merlihan (the “Mother”) appeals the trial court’s final 

order on parental responsibility, time-sharing, child support, and medical 

expenses as well as the trial court’s order granting appellee Daniel 

McWilliam Skinner, Jr.’s (the “Father”) motion for contempt. We reverse

for the reasons set forth below and remand to the trial court for further 

proceedings. 

The Final Order on Parenting Issues

In formulating its order on parenting issues, the trial court approved 

and incorporated the Guardian Ad Litem’s (GAL) final report in its entirety.

On appeal, the Mother asserts the trial court’s approval and adoption of 

the GAL’s report was improper, and the resulting order does not contain 

all the provisions required of a parenting plan under Florida Statutes. The 

Mother also argues that certain provisions within the order are inherently 

in conflict. Because the part of the order dealing with parental 
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responsibility is legally insufficient, impacting the entire final judgment, 

we reverse.

A trial court may not delegate its statutory responsibility to determine 

time-sharing issues to a third party, even if the third party is an expert or 

GAL. See Subramanian v. Subramanian, 239 So. 3d 719, 721 (Fla. 4th 

DCA 2018) (citing Shugar v. Shugar, 924 So. 2d 941, 942 (Fla. 1st DCA 

2006)). In Perlow v. Berg–Perlow, 875 So. 2d 383 (Fla. 2004), the trial 

court received a proposed final judgment from one of the parties and

immediately adopted it without modification and without giving the other 

party an opportunity to comment or object. In concluding the trial court 

erred in this regard, the Florida Supreme Court stated: 

We understand and appreciate the fact that a trial judge in 

these often complex and multi-issue dissolution cases can 

benefit from proposed findings and conclusions prepared by 

the parties. Such proposals can serve as a starting point and 

reminder of the facts and issues that should be considered 

and weighed by the judge . . . However, such submissions 

cannot substitute for a thoughtful and independent analysis 

of the facts, issues, and law by the trial judge. 

Id. at 389-90. 

We recognize that, unlike Perlow, both parties in this case had the 

opportunity to submit proposed parenting plans. See id. at 387-88. 

However, the trial court’s wholesale adoption of the GAL’s proposed 

parenting plan that, among other things, fails to address issues required 

by law, includes provisions unsupported by the evidence in the case, and 

creates inherent inconsistencies within the court’s order, indicates a lack 

of independent analysis of the facts, issues, and law by the trial court as 

it pertains to the parenting plan. Our determination that the court 

improperly delegated its decision-making authority is further supported 

by the trial court’s statement that it was going to rely heavily upon the 

GAL’s report and parenting plan. In addition, the trial court referred the 

parties to the GAL regarding any remaining questions which they may 

have had about the parenting plan.

When the trial court creates or adopts a parenting plan that falls short 

of meeting the statutory requirements, the appropriate course of action is 

to reverse and remand with instructions to address the missing 

requirements. See Scudder v. Scudder, 296 So. 3d 426, 430 (Fla. 4th DCA 

2020). Here, the parenting plan proposed by the GAL and adopted by the 

trial court contains at least four legal defects. 
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First, neither the trial court’s order nor the GAL’s parenting plan 

discusses jurisdictional issues as required by section 61.046(14)(b), 

Florida Statutes (2020). The Father argues the Mother failed to preserve 

this issue for review, but in the family law context, “the failure to comply 

with the statute’s requirement of factual findings is reversible error 

regardless of whether a motion for rehearing is filed.” Fox v. Fox, 262 So. 

3d 789, 791 (Fla. 4th DCA 2018).1

Second, the plan’s provision requiring the parties to attend coparenting classes is too vague to be enforceable because it fails to provide 

a specific duration for attendance or a clear standard by which the trial 

court would judge the parties’ compliance. See Ford v. Ford, 153 So. 3d 

315, 318-19 (Fla. 4th DCA 2014); see also Seligsohn v. Seligsohn, 259 So.

3d 874, 877 (Fla. 4th DCA 2018).

Third, the parenting plan contains inconsistent definitions of “shared 

parental responsibility.” Where a parenting plan contains inconsistences, 

remand may be necessary for the trial court to enter an internally 

consistent order. See, e.g., Pope v. Langowski, 115 So. 3d 1076, 1077-78

(Fla. 4th DCA 2013). Section 61.046(17), Florida Statutes (2020), defines 

“shared parental responsibility” as a “court-ordered relationship in which 

both parents retain full parental rights and responsibilities with respect to 

their child and in which both parents confer with each other so that major 

decisions affecting the welfare of the child will be determined jointly.” § 

61.046(17), Fla. Stat. (2020).

The trial court’s order on parenting issues states: “The parties shall 

enjoy shared parental responsibility. When the minor child is with the 

Father, he will make the decisions, and when the minor child is with the 

Mother, she will make the decisions.” (emphasis added). In contrast, the 

GAL’s parenting plan, as adopted into the trial court’s order, states: 

1 We note that after the Mother filed this appeal, the Florida Supreme Court 

amended Florida Family Law Rule of Procedure 12.530(a) to require an appellant 

to file a motion for rehearing to preserve for appeal the issue of a trial court's 

failure to include the requisite factual findings in a final judgment. See In re: 

Amends. to Fla. R. Civ. P. 1.530 & Fla. Fam. L. R. P. 12.530, 346 So. 3d 1161 (Fla. 

2022); In re: Amends. to Fla. R. Civ. P. 1.530 & Fla. Fam. L. R. P. 12.530, 373 So. 

3d 1115 (Fla. 2023); see also Fla. Fam. L. R. P. 12.530(a) (“To preserve for appeal 

a challenge to the failure of the trial court to make required findings of fact in the 

final judgment, a party must raise that issue in a motion for rehearing under this 

rule.”). These amendments are not retroactive and do not apply to this appeal. 

See Cerniglia v. Cerniglia, 679 So. 2d 1160, 1164 (Fla. 1996).
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The parties shall have shared parental responsibility of [the 

daughter] . . . and all major decisions including, but not 

limited to, health; medical, dental, selection of doctors, 

medical procedures, education (religious and secular); sports, 

extracurricular activities, learning disabilities, behavioral 

problems, emotional well-being, moral, social, recreational 

and legal matters, adolescent, welfare, and upbringing of the 

child shall be made on a joint decision-making basis with each 

party conferring and cooperating with the other. 

(emphasis added). These two provisions are in conflict. On remand, the 

trial court should correct these inconsistencies and enter an order defining 

shared parental responsibility in a manner consistent with section 

61.046(17). 

The fourth legal defect resulting from the trial court’s improper

delegation of authority is the provision waiving shared parental 

responsibility under certain circumstances. The relevant provision 

provides:

Should either party seek the consent or approval of the other 

party on any child[-]related matter and the other party fails to 

respond to the other party’s request for consent or approval 

for any non-emergency matter within forty-eight (48) hours, 

the other party’s consent or approval is deemed waived and 

the requesting party may move forward on that specific childrelated issue as if the other party consented.

The trial court abused its discretion in adopting the GAL’s 48-hour waiver 

provision because section 61.13(2)(b), Florida Statutes (2020), does not 

require the trial court to include such a provision, and neither parent 

requested it. See Scudder, 296 So. 3d at 431 (trial court erred by including 

a provision in the parenting plan which the statute did not require, and 

the parents did not request). The record does not indicate that the trial 

court or the parties discussed the need for such a provision at trial. 

Further, given the lack of allegations that the parents ignore one another 

to “veto” matters of shared parental responsibility, the evidence in this 

case does not justify the provision.

We reverse the final judgment and remand for further proceedings 

consistent with this opinion. We decline to address the parties’ other 

arguments regarding alleged errors in the order and final judgment,
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without prejudice for them to present those issues to the trial court upon 

remand.

The Contempt Order

The Mother also appeals the trial court’s order holding her in contempt

of the time-sharing order. She argues the contempt order should be 

vacated because it did not set forth any facts showing that the violation 

was willful or that she had the ability to comply with the order. “A 

contempt order is reviewed for an abuse of discretion or fundamental 

error.” Ford, 153 So. 3d at 317-18 (citing Wilcoxon v. Moller, 132 So. 3d 

281, 286 (Fla. 4th DCA 2014)).

To hold a person in civil contempt, a court must find that the person 

had the ability to comply with the previous court order and willfully 

refused to do so. See id. at 318 (quoting Harris v. Hampton, 70 So. 3d 747, 

749 (Fla. 4th DCA 2011)); see also Wolf v. Wolf, 296 So. 3d 479, 485 (Fla. 

2d DCA 2020). Additionally, an order which a person is accused of willfully 

violating must be clear and precise, and the person’s conduct must clearly 

violate the order. See Reder v. Miller, 102 So. 3d 742, 743 (Fla. 2d DCA 

2012).

The trial court’s order holding the Mother in contempt does not contain 

the requisite finding that the Mother had the ability to comply with the 

time-sharing order. See Dep’t of Child. & Fams. v. R.H., 819 So. 2d 858, 

862 (Fla. 5th DCA 2002). The Father argues the Mother failed to show she

could not comply. However, the law is clear that the trial court must make 

an affirmative finding that the Mother could comply with the time-sharing 

order. See id.; see also Ford, 153 So. 3d at 318 (affirming a trial court’s 

contempt order because it affirmatively found that the mother had the 

ability to comply with the time-sharing order). 

The trial court also did not specifically identify the language of the order 

which the Mother is accused of willfully violating. See Ford, 153 So. 3d at 

317-18 (Fla. 4th DCA 2014) (stating that contempt cannot be based upon 

noncompliance with something which an order does not say).

For these reasons, we also reverse and remand the contempt order and 

instruct the court to make appropriate findings and issue a legally 

sufficient order resulting from those findings.

Reversed and remanded with instructions.

GROSS and CONNER, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.