### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

ARLENE J. PREUDHOMME
, Appellant,

v.

GARTH F. BAILEY
, Appellee

.

No. 4D 17

- 2308

[ October 24, 2018 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Andrea Gundersen , Judge; L.T. Case No. FMCE09

- 007641(41)(93)

.

Arlene Preudhomme, Pembroke Pines, pro se.

No brief filed for appellee.

W ARNER , J.

Appellant , the former wife, raises multiple challenges to a post

dissolution final order which, among other provisions: 1) denied appellant’s motion for contempt directed at the former husband; 2) denied appellant’s motion to have custody of th e parties’ children’s passports; 3) directed that the parties communicate through a different online service

than that designated in th e original final judgment; and 4) held the appellant in contempt for allowing her children to be tardy to school. We reverse the order holding appellant in contempt, and the associated
attorney ’ s fee award, because of the lack of specific terms of the final judgment with respect to the children’s tardiness in school attendance. We also reverse the modification of the communication system, as no party requested this relief nor was there evidence presented to support such a

modification. We affirm as to all the remaining issues raised

.

The parties divorced in 2010 . T hey have one daughter and two younger

sons. T he original final judgment of dissolution was appealed and reversed for further proceedings in Preudhomme v. Bailey , 82 So. 3d 138 (Fla. 4th DCA 2012). A subsequent final judgment directed equitable distribution

of the marital property and established a parenting plan that gave the2 parties shared parental responsibility. It ordered the parties to

communicate over Our Family Wizard.

During the post

- judgment period , the parties had many issues with respect to visitation. The former husband contended that the former wife made the daughter, and lat er the youngest son, unavailable for visitation.

The former wife argued that the former husband failed to provide a timely, detailed itinerary when he took the children on international travel , as the final judgment required the parties to provide at leas t ten days’ notice and a detailed itinerary of any foreign travel . Multiple motions for contempt
were filed

, as well as motions to prevent the former husband’s

international travel with the children

.

All of the issues pending between the parties were presented to the court in one hearing. One of the issues litigated was the wife’s request that she be granted custody of the children’s passports. The court also heard evidence regarding the children’s t ardiness at school. The former wife testified that the former husband frequently did not communicate

over Our Family Wizard, and the former husband admitted that he had failed to renew his paid subscription to the service for a few weeks.

After hearing all of the evidence, the court denied the former wife’s motion for contempt against the former husband, concluding that the various violations of the parenting plan claimed by the wife were not

sanctionable. The former wife also had moved for contempt bas ed upon the former husband’s alleged perjury with respect to testimony regarding equitable distribution and one of the former husband’s motions for

enforcement. T he trial court found the claims to be moot.

The court did find that the former wife was in c ontempt of the parenting plan because of the children’s tardiness to school while in her care. The court denied her request for possession of the children’s passports

, and it directed the husband to hold the passports other than when the former

wife was t ravelling with the children

. I t further directed the former wife to request the passpo rts from the former husband via

www. talkingparents.com w hen the wife desired to take the children out of the country. The court also adjudicated the remaining claims of equitable distribution, none of which are at issue in this appeal.

On appeal, the former wife raises multiple issues. First, she contends that the court erred in disposing of all the remaining issues in the case, including the equitable distribution, i n one final judgment. We find that

t he court did not err in entering one final order

, rather than multiple

orders

, on the outstanding issues in the case. Second, she argues that3 the court erred in denying her motion for contempt and for enforcement of

th e parenting plan against the former husband. The court found that the violations of the provisions of the parenting plan were not willful, and it

declined to sanction the former husband. A decision to hold a party in contempt is within the discretion of the trial court, and a court is not obligated to find a party in contempt even where there is a factual basis

for such relief . See Milton v. Milton , 113 So. 3d 1040 , 1040

- 41 (Fla. 1st DCA 2013). Th us, th e trial court did not abuse its discretion in this case.

Appellant also claims that the court modified the final judgment without any pleading requesting such relief when it directed the former husband to retain the passports. That is incorrect, as the former wife had requested possession of the passport s in her pleadings, and she addressed

this issu e and presented evidence on it at the final hearing. The former husband had possession of the passports, and the court simply maintained the status quo. Thus, the court did not err because this issue

was tri ed by the former husband’s consent. See Da Cunha v. Mann , 183 So. 3d 1113, 1115

- 16 (Fla. 3d DCA 2015) ( noting a party can give its implied consent to the trial of an unpled issue by not objecting to questioning on the issue).

The former wife also argues that the court modified the final judgment by changing the means of communication between the parties from Our Family Wizard to talkingparents.com. We point out that the court ordered the parties to communicate by talkingparents.com only as to requests by

the former wife for the children’s passports. It appears that the court

ordered use of this website because it was free

, as opposed to a subscription service.

A parenting plan cannot be modified unless there is “a showing of a substantial, material, a nd unanticipated change in circumstances

. . . . ”

Knowles v. Knowles

, 79 So. 3d 870, 872 (Fla. 4th DCA 2012) (citing § 61.13(3), Fl a. Stat. (2011 ) ). While a change in the mode of communication between the parents may seem sufficiently minor

, so as not to require finding s of a substantial change in circumstance s , and that modification is in the best interests of the children, we note that “ the method s and technologies ” used to communicate with a child are of such sufficient importance that the legislature directed that a parenting plan include

those methods as a required element. See § 61.13(2)(b)4

. , Fla. Stat. The same importance attaches to the mode of communication between the parents, as a reliable web communication service can keep track of the communications and may provide significant evidence in contempt or modification pr oceedings.4 There is no information in the record as to the reliability of either service. Here, the trial court modified the final judgment without any request by t he parties, without the issue being tried by implied consent, and without any ability of the parties to contest the change. Under these circumstances, the trial court erred

.

Finally, appellant challenges the trial court’s order finding her in contempt be cause of the children’s tardiness from school, which the court found was a violation of the parenting plan. However, the final judgment

, including the parenting plan

, did not contain an express provision on

school attendance and did not address the issue of school tardiness

. Thus, appellant was not adequately apprised of the consequences of delivering

the children late to school. Our standard of review is de novo when the

court bases its finding of contempt upon a party’s noncompliance with an order ’s provisions which do not proscribe the conduct found to be
contemptuous. Wilcoxon v. Moller , 132 So. 3d 281, 286 (Fla. 4th DCA 2014)

.

“Implied or inherent provisions of a final judgment cannot serve as a basis for an order of contempt.” DeMello v. Buckm an , 914 So. 2d 1090, 1094 (Fla. 4th DCA 2005). A court may not hold a party in contempt for

violation of an order if the order’s commands and directions are not clear.

Keitel v. Keitel

, 716 So. 2d 842, 844 (Fla. 4th DCA 1998). Because the final judgment contained no provision prohibiting tardiness at school caused by the parties, the former wife could not be held in contempt on

this basis. The refore, the court erred in finding appellant in contempt and also in awarding the appellee attorney’s fees for t he contempt.

We thus reverse those portions of the final judgment modifying the communication service to talkingparents.com. Instead, we direct that Our Family Wizard be reinstated as the communica tion service. We also

reverse the finding of contempt a gainst appellant and the award of
attorney ’ s fees to the appellee for pursuing that contempt. We affirm the final judgment as to all other issues raised.

Affirmed in part

, reversed in part

, and remanded to correct the final

order consistent with this opi nion.

M AY and F ORST , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.