Miami, Florida - Divorce lawyer represented Appellant with appealing from an order denying his motion for contempt and to enforce the marital settlement.

The couple was married and had a child in 2013. They divorced in

2015, and a Marital Settlement Agreement (MSA) was entered into and

adopted by the trial court as a part of the final judgment of dissolution. In the

MSA, the parties agreed that, upon their divorce, if either parent wanted to

take their minor child out of the United States, that parent would notify the

other in writing at least seven days prior to the trip. It further provided that a

failure to comply would result in the offending parent paying $10,000 to the

other parent, and that the offending parent would no longer be permitted to

travel internationally with the minor child until the child became an adult. The

provision reads, in pertinent part:

If either parent should travel internationally without giving prior

written notice to the non-traveling parent then the travelling

parent shall be responsible to pay the non-travelling parent the

sum of $10,000.00 within thirty (30) days from the date of the

violation and also the violating parent shall not be entitled to

travel internationally with the minor child all throughout the child's

minority.

Following the divorce, the parents continued to have disagreements

about travelling with the minor child, with the Mother filing several motions

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with the trial court, seeking relief related to travel and timesharing with the

child. An Agreed Supplemental Final Judgment Modifying Timesharing was

entered on April 30, 2018, and later an agreed order was entered removing

certain provisions related to makeup timesharing and the right of first refusal

for timesharing when one parent is travelling. However, none of these

subsequent modifications altered the provision in the MSA at issue, relating

to notice of international travel with the minor child and the consequences

for a violation of same.

In February 2019, the trial court entered an order containing the

following relevant provisions:

Pursuant to the judgment of this Court adopting the MSA of the

parents, the minor child's passport shall include authorization for

either parent to travel internationally with the child without the

consent or approval of the non-traveling parent.

[The Mother] shall be entitled to travel with the minor child without

[the Father's] consent or approval required under the laws of

Brazil or the United States.

The Court retains jurisdiction to modify this order or issue

additional orders to effectuate the intent of the Court regarding

the granting to [the Mother] the right to obtain a Brazilian

passport for the minor child and to travel with the minor child

without the necessity of [the Father] execution [sic] any

documents with the country of Brazil or the United States.

It is plain that the purpose of this February 2019 order was to authorize

the Mother to obtain a passport for the child and to travel internationally

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without the necessity of the Father executing documents or giving consent

for those purposes. However, the February 2019 order did not address or

alter the provision of the MSA requiring the giving of timely notice of

international travel with the minor child.

Thereafter, during Thanksgiving 2019, the Mother travelled to Ireland

with the minor child without first giving timely notice to the Father. The Father

learned of this trip upon the child's return, and he thereafter filed a motion

for contempt and to enforce the MSA against the Mother. The relief he

sought—pursuant to the express terms of the MSA—was an order requiring

the Mother to pay him $10,000, and prohibiting the Mother from thereafter

travelling internationally with the minor child. The Father filed a separate

motion seeking contempt sanctions as well.

The Mother responded, asserting that the February 2019 order of the

court allowed her to travel internationally with the child without the Father's

consent, that this February 2019 order superseded all prior orders of the

court and thus, notice to the Father in advance of international travel was no

longer required.

After a hearing, the court denied the Father's motion for contempt, and

further determined that: (1) the $10,000 payment for violation of the MSA's

notice requirement was an unenforceable penalty clause; (2) enforcement of

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the MSA's provision prohibiting the Mother to travel internationally with the

minor child was not in the child's best interests; and (3) although the Mother

did violate the MSA's notice requirement, the violation was not willful or

intentional. The court later denied the Father's motion for rehearing, and this

appeal followed.

The MSA provides two separate sanctions when one parent fails to

timely notify the other parent of international travel with the minor child: (1)

payment of an agreed-upon amount ($10,000) by the offending parent to the

other parent; and (2) prohibiting the offending parent from any further

international travel with the child until the child reaches the age of majority.

We hold that the provision requiring payment of a $10,000 monetary

sanction is enforceable, but the provision prohibiting the offending parent

from any further international travel with the minor child is not enforceable

where (as here) the trial court made findings, supported by the evidence,

that enforcement of this provision is not in the best interests of the child.

In Palmer v. Palmer, 109 So. 3d 257 (Fla. 1st DCA 2013), our sister

court considered whether a contract provision in an MSA, which provided

that the former husband must pay the former wife a sum of money for failing

to timely refinance the marital home, was an unenforceable penalty clause.

The First District held that because "[a] contract provision setting damages

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for delay in performance is not void as a matter of law,” but, rather, merely

voidable, the clause was not subject to collateral challenge by the former

husband because it had been incorporated into the final judgment of

dissolution of marriage. Id. at 258. The fact that the monetary penalty

provision had already been adopted and incorporated by the court in the final

judgment rendered it unassailable as between the parties, and the party

subject to the penalty was prohibited from challenging its enforcement.

The Mother contends the instant case differs from Palmer because,

here, a minor child is involved. However, the $10,000 monetary sanction is

a negotiated payment from the offending parent to the non-offending parent;

the sanction does not directly involve or affect the child, nor did the trial court

make any finding that the sanction indirectly did so, or that payment of this

sanction was not in the child's best interests. We agree with the analysis in

Palmer and hold that the $10,000 monetary sanction, negotiated and agreed

to in the MSA, which was adopted by the trial court and incorporated into the

final judgment of dissolution, is not an unenforceable penalty clause. "It is

well settled that in a dissolution of marriage proceeding, the parties are free

to agree to obligations the trial court could not order in the absence of an

agreement.” Godwin v. Godwin, 273 So. 3d 16, 24 (Fla. 4th DCA 2019)

(quoting Taylor v. Lutz, 134 So. 3d 1146, 1148 (Fla. 1st DCA 2014)). The

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trial court erred in concluding that this monetary sanction was an

unenforceable penalty clause.

However, as to the additional sanction—a blanket prohibition of any

further international travel with the minor child—we hold the court acted

within its discretion in not enforcing this provision upon a determination that

such sanction was not in the child's best interests. See Pagliaro v. Pagliaro,

264 So. 3d 196, 198 (Fla. 4th DCA 2019) (reiterating that "'a trial court's

responsibility to the child cannot be abdicated to any parent, or any expert,'

and a court is not bound by any agreement between parents” (internal

quotation omitted); Puglisi v. Puglisi, 135 So. 3d 1146, 1148 (Fla. 5th DCA

2014) (holding, as to agreements between parents on child support, custody,

or visitation: "The 'best interests' of the child takes predominance over any

agreement between the parents and must be independently determined by

the trial court”); Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996)

(holding a trial court may set aside agreement on child support, custody and

visitation if it is not the best interest of the children).

We therefore affirm that portion of the trial court's order denying

enforcement of the "no international travel” sanction in the MSA, based upon

the trial court's finding that enforcement was not in the minor child's best

interest. However, we reverse that portion of the trial court's order which

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concluded the $10,000 sanction was an unenforceable penalty clause.

We remand with instructions to enter an amended order enforcing the agreedupon $10,000 payment and ordering the Mother to pay.1\



Affirmed in part, reversed in part, and remanded with directions.