        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                            MICHAEL STUSCH,
                                Appellant,

                                      v.

               THE MATTER OF JENNIFER K. JIRUSKA,
                            Appellee.

                               No. 4D14-4414

                             [January 6, 2016]

   Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Timothy Bailey, Judge; L.T. Case No.
13-00407 FMCE (41)(97).

  Wendy J. Stein and Stephanie M. Michel of Keller Landsberg PA, Fort
Lauderdale, for appellant.

    Craig J. Trocino of Michael Gottlieb, PA, Fort Lauderdale, for appellee.

CIKLIN, C.J.

   Appellant Michael Stusch appeals an order holding him in civil
contempt for failure to pay child care expenses, guardian ad litem fees,
and attorney’s fees. Because we find that the trial court erred in
conducting the contempt hearing in Stusch’s absence, we reverse and
remand for a new contempt hearing. We also write to address several
mistakes included in the contempt order.1

                  Factual and Procedural Background

    Stusch (“the father”), a German citizen, and appellee Jennifer Jiruska
(“the mother”), a United States citizen, are the parents of a minor child
born in Spain in 2012. Approximately six months after the child’s birth,


1 At the outset, we note that both the circuit court below, and now this court,
are constrained and handicapped by Spanish to English translation of
numerous documents from a Spanish court that, at least in generally accepted
English legalese, appear confusing.
the parties ended their romantic relationship and the mother moved to
Florida with the child.

   In July 2013, the Spanish court entered a final judgment determining
paternity, child support, time sharing, and other issues between the
parties. The judgment awarded primary custody of the child to the
mother and requires the father to pay monthly support. Additionally, the
father was required to pay seventy-five percent of “extraordinary
expenses” “having a medical or pharmaceutical origin . . . and those
which, having an origin in the child’s play or academic activity, were
agreed to be undertaken or incurred by both parents, or which in default
or absence of that would be [or were]2 judicially authorized.” The
Spanish judgment further states that expenses “having an origin in the
child’s play or academic activity and which do not count for their being
undertaken or incurred on the agreement of both parents or the
substitutory judicial authorization” shall be paid entirely by whichever
parent “determines that said expense(s) is (are) to be realized.”

   The mother registered the Spanish judgment in the Florida circuit
court in October 2013. In April 2014, the Florida circuit court entered
an order confirming the registration and finding that it had jurisdiction
to “enforce and clarify” the Spanish judgment.           The Florida court
appointed a guardian ad litem and ordered the father to pay seventy-five
percent of the guardian’s initial fee. The court also required the father to
stipulate to his ability to pay “allocated court ordered attorney’s fees and
costs in this matter, if any.”

   In May 2014, the mother filed a motion for contempt and for
clarification of the father’s obligation to pay child-related expenses. She
asked the trial court to order the father to pay his share of medical
expenses and all other “reasonable” child care expenses, to hold the
father in contempt for his failure to pay, and to impose attorney’s fees as
a sanction for contempt.

   The motion was originally noticed for hearing on August 29, 2014, but
the court subsequently rescheduled the hearing to October 9, 2014. The



2 The body of the Spanish judgment, in the English translation, reads “would be
judicially authorized.” But under the “decree” heading at the end of the
judgment, the language in the judgment under our review is changed to “were
judicially authorized.” Although it is not relevant to the issues on appeal, we
note that this latter section does not seem to appear in any portion of the final
section of the original Spanish judgment.

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father sent a letter to the Florida circuit court which was received on
September 24, 2014. The father’s letter stated in part:

      I have to let you know that I’m not able to join the hearing on
      the 9th of October 2014 in person, because I just left
      yesterday the hospital with an intervertebral discs infection,
      have to go back to hospital on the 25th of September and I’m
      not able to fly in an airplane for at least 2 month [sic]. I will
      also attache [sic] the hospital and doctor statements. I can
      offer you to be available by phone on the 9th of October
      2014, if you need to talk to me personally and my
      statements below are not sufficient enough to dismiss the
      motion.

The father’s letterhead contained two telephone numbers, one of which
was identified as a cell phone number, and an e-mail address. The
father further stated in the letter that pursuant to the Spanish judgment,
he is obligated to pay seventy-five percent of medical or academic
expenses only if he agrees to incur them, and that only the Spanish court
has jurisdiction to modify the Spanish judgment.

    The court held the hearing as scheduled, without the father being
present either in person or via telephone. The guardian ad litem
informed the court that the father had not paid his portion of the
guardian ad litem’s initial fee. The mother testified that the father had
never paid for any medical or academic expenses for the child and would
not agree to pay for any costs incurred in the United States because he
believed the child should be raised in Europe. In support of her motion
for attorney’s fees, the mother’s attorney presented an affidavit and
billing records dated immediately after the Spanish judgment was
entered.

    The Florida circuit court made findings on the record and later
entered a written order.3 The court found the father in contempt for
failing to pay seventy-five percent of medical and academic expenses in
the amount of $5,283.35; seventy-five percent of the guardian ad litem’s



3 The order was prepared by the mother’s attorney and adopted verbatim by the
court. It appears that the father did not have a meaningful opportunity to
review the proposed order before it was signed. However, reversal is not
warranted on this point because the order is mostly consistent with the court’s
oral rulings. See Damiani v. Damiani, 835 So. 2d 1168, 1170-71 (Fla. 4th DCA
2002).

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fee in the amount of $2,625.00; and attorney’s fees and costs in the
amount of $29,077.09.

   The father subsequently retained Florida counsel and filed a timely
motion for rehearing. The trial court denied the motion following a
hearing.

                      Due Process Considerations

   The father argues that the trial court abused its discretion in failing to
continue the contempt hearing or allow him to appear by telephone. We
agree.

   Although the father did not expressly ask for a continuance or
demand to appear by phone, the court should have construed his pro se
pleading liberally. See, e.g., James v. Crews, 132 So. 3d 896, 899 (Fla.
1st DCA 2014). The father’s letter stated that he would be available by
phone, if the court did not find his written statements sufficient to
dismiss the motion. Clearly implied was a desire to appear, at least by
phone, if the mother’s motion was not going to be dismissed. It is clear
that the father did not expect to be held in contempt for over $35,000.00
without being heard.

   At the commencement of the subject hearing, the court mistakenly
stated, “He said he’d love to appear by phone but he didn’t give me his
phone number.” The father’s letterhead contained two phone numbers
and an e-mail address. The court received the letter fifteen days before
the hearing, and easily could have continued the hearing or contacted
the father to make arrangements for him to appear by phone.

    The father was entitled to basic due process and fundamental
fairness, including adequate notice and an opportunity to be heard. See
Haeberli v. Haeberli, 157 So. 3d 489, 490 (Fla. 5th DCA 2015); Cervieri v.
Cervieri, 814 So. 2d 528, 529 (Fla. 4th DCA 2002). In considering
whether a trial court abused its discretion in failing to continue a
hearing, we consider “whether the denial of the continuance creates an
injustice for the movant; whether the cause of the request for
continuance was unforeseeable by the movant and not the result of
dilatory practices; and whether the opposing party would suffer any
prejudice or inconvenience as the result of a continuance.” Ryan v.
Ryan, 927 So. 2d 109, 111 (Fla. 4th DCA 2006) (quoting Fleming v.
Fleming, 710 So. 2d 601, 603 (Fla. 4th DCA 1998)).



                                     4
    Here, all of the factors weigh against the court: the father was held in
contempt for over $35,000.00 without being able to present evidence or
argument on his own behalf; he was prevented from traveling due to an
alleged unforeseen medical condition; and there is no indication that the
mother would have been prejudiced by continuing the hearing for two
months until the father could travel to the United States.

    The father was entitled to a meaningful opportunity to be heard before
being held in contempt. We find that the trial court abused its discretion
in failing to continue the hearing or allow the father to appear by phone.
We therefore reverse and remand for a new contempt hearing.

                     Errors in the Contempt Order

   Although not necessary to our ultimate decision in this case, we also
write to address numerous errors in the contempt order.

   First, we find that the trial court erred in holding the father in
contempt for failing to pay attorney’s fees. We generally review a
judgment of contempt for an abuse of discretion. See DeMello v.
Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005). However, “[a]
judge cannot base contempt upon noncompliance with something an
order does not say.” Keitel v. Keitel, 716 So. 2d 842, 845 (Fla. 4th DCA
1998) (Farmer, J., concurring); see also Nastasi v. Thomas, 88 So. 3d
407, 411 (Fla. 4th DCA 2012) (recognizing that contempt sanction was
not appropriate for a violation of a settlement agreement where the
settlement agreement was not incorporated into a court order). Under
such circumstances, we review the order de novo. See Wilcoxon v. Moller,
132 So. 3d 281, 286 (Fla. 4th DCA 2014).

   The father was never ordered to pay attorney’s fees prior to the filing
of the motion for contempt. The court’s order stated that it imposed
attorney’s fees as a sanction for contempt, which is permissible. See,
e.g., Worthington v. Harty, 677 So. 2d 1371, 1371-72 (Fla. 4th DCA
1996). However, the court cannot in the same order hold the father in
contempt for failure to pay attorney’s fees in the first instance because the
father has not violated any court order by failing to do so.

   Second, we find that the court erred in failing to limit the amount of
the fees imposed to those directly related to the motion for contempt.
When a court imposes attorney’s fees as a sanction for civil contempt,
the fees must be based on evidence of the injured party’s actual loss and
must be directly related to the successful motion for contempt. See
Levine v. Keaster, 862 So. 2d 876, 880 (Fla. 4th DCA 2003).

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   The court in this case ordered the father to pay all fees and costs
incurred by the mother from the date of the Spanish judgment. This
case has been heavily litigated since the Spanish judgment was entered,
and the trial court failed to make any findings regarding what portion of
the fees were incurred in obtaining the subsequent contempt order. If
the trial court on remand again finds the father in contempt and imposes
fees as a sanction, it must ensure that the fees are limited to those
directly related to the successful motion for contempt.

   Third, we find that the court erred in imposing attorney’s fees without
making the necessary proper findings. When a trial court awards
attorney’s fees, it must set forth specific findings concerning the hourly
rate, the number of hours reasonably expended, and the appropriateness
of reduction or enhancement factors. See Campbell v. Campbell, 46 So.
3d 1221, 1222-23 (Fla. 4th DCA 2010). “[A] fee award simply taking the
amount charged by the attorney and determining it to be reasonable is
improper and an abuse of discretion.” Id. at 1223. That portion of the
order in this case simply states that the fees incurred and the hourly rate
charged are reasonable. If the trial court on remand again finds the
father in contempt and imposes fees, it must make the required specific
findings.

    Finally, we find that the court erred in holding the father in contempt
for failing to pay seventy-five percent of all child-related expenses. The
Florida circuit court’s order states that the father is required to pay
“uncovered medical or pharmaceutical expenses and those ‘which,
having an origin in the child’s play or academic activity’ at a pro-rata
share of seventy five percent.” Yet as confusing as some parts of the
Spanish judgment may be, a plain reading of the Spanish judgment
indicates that, as to expenses “having an origin in the child’s play or
academic activity,” the father is required to pay seventy-five percent only
if the expense is either agreed to by both parents or judicially authorized;
otherwise, the parent incurring the expense must pay it. (As to expenses
“having a medical or pharmaceutical origin,” the father is required to pay
seventy-five percent regardless of whether he agrees to incur the
expense.)

   Again, contempt cannot be based on noncompliance with something
the previous order does not say. See Nastasi, 88 So. 3d at 411. The
father cannot be held in contempt for failure to pay seventy-five percent
of expenses “having an origin in the child’s play or academic activity”
because he has not violated any court order by failing to do so. The trial
court may have jurisdiction to authorize certain expenses, thus triggering

                                     6
the father’s obligation to pay seventy-five percent, but that issue is not
before us. To reiterate, regardless, the court cannot authorize expenses
and in the same order hold the father in contempt for failing to pay them.
If the court on remand again finds the father in contempt, it is directed
to reconsider the evidence to separate the medical and pharmaceutical
expenses, which the father is clearly obligated to pay, from the “play and
academic expenses.”

   Because we find that the trial court erred in failing to continue the
contempt hearing or allowing the father to appear by telephone, we
reverse and remand for a new contempt hearing. We direct the trial
court, if it again finds the father in contempt, to ensure that its order is
consistent with this opinion.

   Reversed and remanded with instructions.

TAYLOR and GERBER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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