Thursday, March 02, 2006

Contempt – Part 2

If the legislature clearly misinterprets a constitutional provision, the frequent repetition of the wrong will not create a right. Amos v. Mosley, 74 Fla. 555; 77 So. 619.
Contempt Defined


1. Criminal
Although criminal contempt is not a statutory offense, it is a common law crime in Florida. Persons accused of criminal contempt are entitled to the same basic constitutional rights as are those accused of violating criminal statutes. Aaron v. State, 284 So.2d 673 (Fla. 1973). Thus, the presumption of innocence applies and the charge must be proved beyond every reasonable doubt.

CASES: Burden of proof required in criminal contempt proceedings is beyond a reasonable doubt. Kramer v. State, 800 So.2d 319 (Fla. 2d DCA 2001). To prove indirect criminal contempt, there must be proof beyond a reasonable doubt that the individual intended to disobey the court. Tide v. State, 804 So.2d 412 (Fla. 4th DCA 2001).

2. Civil
The contempt must be proved by a preponderance of the evidence. There is no presumption of innocence. In Interest of S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965).

No general rule of procedure available to follow, but see Florida Family Law Rules of Procedure 12.615 governing civil contempt proceedings in support matters related to family law cases, below.
1. Motion and notice required: See Fla.R.Civ.P. Form 1.982; Fla. Fam. L.R .P. 12.615(b).
a. Initiated by person having standing by serving motion and notice on respondent or his/her counsel
b. Service by mail is sufficient. Spencer v. Spencer, 311 So.2d 822 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 845 (Fla. 1975); Dep’t. of Health & Rehab. Servs. v. Pierre, 625 So.2d 987 (Fla. 3d DCA 1993).
c. Service by publication is not permitted. Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980), disapproved in part on other grounds, 413 So.2d 749 (Fla. 1982).
d. Notice must be reasonable. Hayman v. Hayman, 522 So.2d 531 (Fla. 2d DCA 1988) (notice received morning of contempt hearing was not sufficient notice)
e. Motion and notice must specify acts claimed to be contemptuous
f. Must specify time and place of hearing

2. Hearing:
a. Court must inform respondent of allegations.
b. Moving party has burden of proof as in any civil proceeding (preponderance of the evidence).
c. Once noncompliance is established or admitted, burden shifts to respondent to show inability to perform or excuse.
d. Respondent is not entitled to counsel because proceedings are remedial and not criminal. Andrews v. Walton, 428 So.2d 663 (Fla. 1983).
e. Appellant’s failure to provide transcript of civil contempt proceeding barred review. Calicchio v. Calicchio, 693 So.2d 1124 (Fla. 4th DCA 1997); Ganceres v. Ganceres, 703 So.2d 1220 (Fla. 5th DCA 1998).

3. Fines
a. A compensatory fine may be imposed to compensate an injured party for losses. Fine must be based on evidence of the injured party’s actual loss. Johnson v. Bednar, 573 So.2d 822 (Fla. 1991) as modified by International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 129 L.Ed.2d 642 (1994). Only if the fine is compensatory is it appropriate to dispense with a purge provision. Gregory v. Rice, 727 So.2d 251 (Fla. 1999), citing Bagwell.
b. A coercive fine may be ordered to coerce compliance. However, the court must consider (a) the character and magnitude of the harm threatened by continued contumacy, and (b) the probable effectiveness of a particular sanction in achieving the result desired. The court must also consider the offending party’s financial resources and the seriousness of the burden on that party. Parisi v. Broward County, 769 So.2d 359 (Fla. 2000); Johnson v. Bednar (as modified, see above); Spade Engineering Co. v. Dep’t. of Envtl. Protection, 670 So.2d 1062 (Fla. 2d DCA 1996).
c. Coercive fines must have purge provision. Gregory v. Rice, 727 So.2d 251 (Fla. 1999), citing Bagwell. See "Purge" below under Rule 12.615.
d. "Bonded" fines are not permitted as civil contempt sanctions. Post a bond or place fines in escrow pending compliance. Parisi v. Broward County, 769 So.2d 359 (Fla. 2000).
e. Attorney’s fees may be awarded as sanctions. Lamb v. Fowler. 574 So.2d 262 (Fla. 1st DCA 1991).

4. Incarceration
a. Incarceration may be ordered but ONLY if purge provision is provided AND court finds that contemnor has present ability to perform the purge. Siegel v. Felcher, 636 So.2d 872 (Fla. 3d DCA 1994); Ponder v. Ponder, 438 So.2d 541 (Fla. 1st DCA 1983), review denied, 477 So.2d 887 (Fla. 1984); Mallardi v. Jenne, 721 So.2d 380 (Fla. 4th DCA 1998); Clark v. Manning, 721 So.2d 793 (Fla. 3d DCA 1998).
b. Period of incarceration should be indefinite. Contemnor carries keys to cell in his own pocket. Pasin v. Pasin, 480 So.2d 699 (Fla. 4th DCA 1985); Pugliese v. Pugliese, 347 So.2d 422

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