Saturday, March 04, 2006

Contempt – Final Part 3

"Law and justice are not always the same. When they aren't, destroying the law may be the first step toward changing it." --Gloria Steinem
Contempt
6. Judgment:
a. must be in writing
b. must be signed by judge
c. must recite facts upon which contempt is based
d. must contain purge provision and must contain a finding that respondent has the present ability to meet the purge. Andrews v. Walton, 428 So.2d 663 (Fla. 1983); Haymon v. Haymon, 640 So.2d 1204 (Fla. 2d DCA 1994); Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984), approved, 471 So.2d 1274 (Fla. 1985); Barben v. Barben, 681 So.2d 742 (Fla. 2d DCA 1996); rev, denied, 686 So.2d 575 (Fla. 1996); Spade Engineering Co. v. Dep’t of Envtl. Protection, 697 So.2d 974 (Fla. 2d DCA 1997); Krystoff v. Krystoff, 705 So.2d 146 (Fla. 4th DCA 1998); Mallardi v. Jenne, 721 So.2d 380 (Fla. 4th DCA 1998); Clark v. Manning, 721 So.2d 793 (Fla. 3d DCA 1998).
e. may not order incarceration for future noncompliance. Koeppel v. Holyszko, 643 So.2d 72 (Fla. 2d DCA 1994); Samuels v. Grossman, 720 So.2d 297 (Fla. 1st DCA 1998).

J. RULE 12.615.CIVIL CONTEMPT IN SUPPORT MATTERS - Effective February 1, 1999
1.Purpose - To compel compliance with court order, or to compensate for losses sustained as a result of willful failure to comply with order. See Giallanza v. DOR, 799 So.2d 256 (Fla. 2d DCA 2001).
2. Initiated by motion and notice. No civil contempt may be imposed without notice and an opportunity to be heard.
a. May be served by mail “provided notice by mail is reasonably calculated to apprise alleged contemnor of pendency of the proceedings.” Notice must specify time and place of hearing.
b. Motion must contain facts/acts amounting to contempt
c. Motion must contain: “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.”

3. Hearing – STEPS
a. Court must first make express finding on proper notice of motion and hearing.
b. Movant then establishes prior order, failure to pay and arrearage amount.
c. If ∆ not present, set reasonable purge. The court may issue writ of bodily attachment directing ∆ be brought before court within 48 hours on issue of present ability and willful failure to pay.
d. If ∆ present, determine present ability to pay and willful failure to pay arrearage amount.

4. Order and Sanctions –Finding of contempt requires written order granting or denying motion with factual findings:
a. contemnor had notice of motion and hearing
b. prior order was entered
c. failure to pay
d. had present ability to pay (remember statutory presumption)
e. willfully failed to pay comply with prior order
f. recital of facts on which findings are based. If court grants motion, court may impose appropriate sanction, including:
a. incarceration
b. attorney’s fees, suit $ and costs
c. compensatory or coercive fines
d. any other coercive sanction permitted by law

MUST HAVE PURGE PROVISION
5. Purge
a. If court orders jail, coercive fine or any other coercive sanction – must set conditions for purge of contempt based upon present ability to comply.
CASE: Purge provision requiring, inter alia, that ex-husband "not expose the children to his hostility toward the Former Wife" was too broad and indefinite. Lanza v. Lanza, 804 So.2d 408 (Fla. 4th DCA 2001).
b. Must make separate affirmative finding of present ability to comply with purge and the factual basis for that finding.
c. Court may grant ∆ reasonable time to purge.
d. If court defers jail for more than 48 hours in order for contemnor to comply, court may rely on affidavit of non-compliance from movant and certificate from Depository, when issuing writ of bodily attachment.
e. Court may jail upon proof of non-compliance, but must re-determine present ability to purge within 48 hours of arrest.

6. Continuing authority to review present ability to comply with purge, to review duration of incarceration, and to modify any prior orders upon motion of any party or court.
7. Where there is a failure to pay support but no showing that it was willful, court may grant such relief as may be appropriate under the circumstances.

CASES: Limitations on sanctions.--In contempt action court could not order husband to pay one-half daycare expenses in addition to previously ordered child support. There was no petition for modification of child support before the court. Bator v. Osborne, 799 So.2d 263 (Fla. 2d DCA 2001). Attorney fees.--Civil contempt may be used to enforce award of attorney fees in dissolution where there was no support awarded and no visitation issue. Wertkin v. Wertkin, 763 So.2d 465 (Fla. 4th DCA 2000), citing Fishman v. Fishman, 656 So.2d 1250 (Fla. 1995) (Civil contempt may be used to enforce payment of attorney’s fees owed by one former spouse to the other which were awarded as contempt sanction in visitation enforcement proceeding.); Robbie v. Robbie, 683 So.2d 1131 (Fla. 4th DCA 1996). (Payment of attorney fees reduces wife's ability to support herself; therefore attorney fees could be seen as an element of support.) Change of custody was not a proper sanction for indirect civil contempt of visitation order. LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999). Following erroneous order.--Order authorizing H to abate court-ordered child support until further order of the court was clearly wrong, but H may not be held in contempt for following it. (He may be ordered to pay the resulting arrearage, however.) Stanley v. Stanley, 756 So.2d 210 (Fla.4th DCA 2000). Abatement of child support.--"Fine" imposed in the form of abatement of child support was punitive sanction rather than purge and converted civil contempt proceeding to one for indirect criminal contempt. Lack of constitutional due process protections required by Fla. R. Crim P. 3.840 required reversal of proceeding. Kimball v. Yaratch, 787 So.2d 97 (Fla. 2d DCA 2001).

K. CONVERTING CIVIL CONTEMPT TO CRIMINAL CONTEMPT
While you may not mix civil and criminal contempt in the same proceeding, it is possible to convert civil contempt to criminal contempt after a hearing is commenced. However, “[s]uch a conversion would mandate the continuation of the hearing to provide for issuance of an order to show cause that complies with the rule with fair opportunity to the respondent to prepare and be heard. However, such practice flirts with procedural due process flaws. Accordingly, better practice suggests that such situations be anticipated in advance whenever possible so that full due process safeguards required by Fla. R. Crim. P. 3.840 will be afforded.” Pugliese, 347 So.2d 422, 426-427 (Fla. 1977).
A person may be held in civil contempt and criminal contempt. in separate proceedings, for the same conduct. Featherstone v. Montana, 684 So.2d 233 (Fla. 3rd DCA 1996).

CASUALTIES OF STATE SPONSORED VIOLENCE
* Men more likely to commit suicide after divorce, study finds

EXAMPLES OF A JUDICIAL SYSTEM AND JUDGES GONE AWRY:
* Queens Judges Appeal Misconduct Findings
* Judge reprimanded for expunging criminal records

EGREGIOUS EXAMPLES OF OUR “INJUSTICE” SYSTEM
* Judge was overturned when he ordered a disabled vet to pay alimony to his ex-wife based upon his VA disability.
* Child Abductor Demands That Military Dad Post $100,000 to See His Own Son

INTERESTING READING:
* Court of Supreme Importance

Be sure to visit this site: www.abolish-alimony.org/

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