final until disposition of timely filed motion for rehearing.
from non-final orders from the Circuit Court for Miami-Dade
County Lower Tribunal No. 10-11645 George A. Sarduy, Judge.
Office of Kenneth B. Schurr, P.A. and Kenneth B. Schurr;
Buchbinder & Elegant, P.A., and Harris J. Buchbinder, for
& Kahn, P.A., and Owen Ellison Kahn, for appellee.
ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
consolidated appeals in this high-conflict, post-judgment
family case are brought by the mother and former wife, Dr.
Kane, from an order holding her in civil contempt (Case No.
3D17-148) and an order on a series of motions (Case No.
3D17-69). For jurisdictional and other reasons, we first
describe the procedural history and then separately analyze
the two appellate cases. We dismiss the appeal in Case No.
3D17-69 for lack of jurisdiction. In Case No. 3D17-148, we
reverse and vacate the order granting the former
husband's motion and supplemental motion for contempt,
sanctions, and attorney's fees and costs.
former husband and appellee here, Dr. Sanders, petitioned in
mid-2010 for the dissolution of the parties' six-year
marriage. By March of 2011, he and Dr. Kane had entered into
a mediated marital settlement agreement and parenting plan
("MSA"). The then-presiding family court judge
approved and incorporated the MSA in a final judgment of
dissolution of marriage only two weeks later. The
parties' daughters were then two and five years of age.
about three years, however, various disputes arose regarding
time with the children and interpretation of a "right of
first refusal" clause (the
"ROFR") in the parenting plan. The disputes
intensified following Dr. Kane's remarriage. Under Dr.
Sanders' interpretation of the ROFR, Dr. Kane could not
leave the two girls in their home for 45 minutes to go to the
grocery store without first offering to drive the children to
Dr. Sanders' home to leave them with him (and offering to
pick up the children to return them to her home). As father
and former husband, Dr. Sanders also claimed that Dr. Kane
violated the final judgment because she made a "major
health decision" unilaterally when she changed the date
their daughters were to go to the dentist.
Sanders moved for the appointment of a parenting coordinator,
and Dr. Kane agreed to such an order. Several months later,
Dr. Sanders filed a "Motion to Compel, for Contempt,
Sanctions, Attorney's Fees and Costs, " alleging:
five occasions when he was deprived of his right of first
refusal; Dr. Kane's alleged failure to pay for piano
lessons, in violation of the MSA; her violation of
"sleep-over" agreements and "healthy
snacks" agreements established with the parenting
coordinator; Dr. Kane's interference with Dr.
Sanders' telephone contact with the two girls; and her
"excessive physicality with and hitting of" the
Dr. Sanders' motion was heard in December 2016, the
breaches of the ROFR turned out to involve strained
interpretations of that clause (leaving one or both of the
children at home with child care for a matter of hours rather
than a full day, and for reasons which were practical rather
than violative of the parenting plan embodied in the MSA).
The alleged violation of the "healthy snacks"
agreement arranged by the parenting coordinator occurred when
the children refused to accept carrots, hummus, and apples
Dr. Sanders brought to school on days when Dr. Kane was the
custodial parent. Dr. Sanders supplemented the motion for
contempt with allegations that Dr. Kane was refusing to meet
with him and their older daughter (by then ten years old)
regarding her participation on a jump rope team, such that
Dr. Sanders would not allow further participation in those
Dr. Sanders' concern about the children's contact
with Dr. Kane's fiancé (who became Dr. Kane's
husband), the parties mutually agreed that a licensed
psychologist should conduct an investigation and provide a
report. Each party met twice with the psychologist, but Dr.
Sanders then advised the psychologist that her work was
suspended. Dr. Kane filed a motion to appoint a guardian ad
litem for the minor children, and the parenting coordinator
filed a request for a status conference to ask the family
court for psychotherapeutic evaluation and treatment for the
Kane scheduled the psychologist for a deposition, but Dr.
Sanders moved for a protective order based on an assertion
that the psychologist was ...