The plaintiff, mother, and defendant, father had two minor children and divorced in July 2003. At the time of the dissolution of marriage, the parties filed a separation agreement, which was incorporated by reference by the court, asking for joint legal and physical custody of the children. One provision of this agreement required that any and all modifications must be formal; that is, in writing, signed by both parties, and notarized. Another provision stated that failure to strictly enforce a specific provision did not constitute a waiver to later enforce the same provision.
The Agreement Between Ex-Spouses
The agreement included an alternating week parenting plan, to which the father refused to adhere, and the mother orally agreed to try a temporary alternative plan. The mother requested twice by email to revert to the alternating week plan, as the new schedule in her view was not in the best interests of the children. The father again refused and threatened litigation. In addition, each parent had right of first refusal to care for the children if the other parent is unavailable. However, on multiple occasions when the father was traveling on business, he simply left the care of the children to his new wife, despite several written reminders from the mother of her right.
Finally, each parent was required to confer with the other regarding the welfare of the children and inform each other about the location of the children during that parent’s time. However, the father failed to do so when he unilaterally allowed their younger child to attend several retreats and projects without first consulting the mother or regardless of her objection.
The Court Findings
The court found the above provisions of the separation agreement clear and unambiguous, and therefore the father’s failure to comply and exercise of self-help constituted violations of these provisions. It found the father’s conduct to be willful when he twice refused to follow the alternating week parenting plan despite the mother’s attempted enforcement. Agreement to the alternative plan did not constitute a waiver, as this modification was not formal.
The court also found the father’s conduct to be willful when he left the children with his new wife despite the mother reminding him multiple times of her right of first refusal. As such, the court found the father in contempt, ordered him to follow the provisions of the separation agreement, and awarded attorneys fees to the mother.
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