Tuesday, March 28, 2006

Challenge the Alimony Statutes!!

"When a legislature undertakes to proscribe the exercise of a citizen's constitutional rights it acts lawlessly and the citizen can take matters into his own hands and proceed on the basis that such a law is no law at all."
--William O. Douglas

Are you now paying alimony??

Is there a possibility you will be unable to make your payments sometime in the future?

Are you facing contempt of court or in the middle of a contempt hearing?

If the answer to any of the three questions is yes, then it will be to your advantage to look into challenging the constitutionality of your states alimony statutes as violating your constitutional rights. This might seem a lofty and daunting endeavor to undertake, but let me assure you it is well within your reach. And, you don’t have to be a lawyer to do it.

The constitutional challenge arguments can be used as a defense to the contempt proceedings and will get the case to appeal. As an example of what can be done by a non-lawyer on a Pro Se basis (without an attorney), take a look at the court filings in my case at www.abolish-alimony.org. Look here and here.

By and large, the media has taken no notice of our plight. It has been extremely difficult to get publicity for the injustices served up by the “justice system.” The more people that are consumed by this process, the more emboldened the judiciaries are to continue enslaving spouses. And for most of us, this means the courts will keep you under their thumb for the rest of your life.

The more of these cases that can be filed with the courts, the sooner the judicial system will take notice of the extent that they are violating the constitutional rights of divorced spouses who have to pay alimony. To see the rights they are violating, read this document.

The only way you can help yourself is to fight back using the laws they have created against them. Unless you do it now, there is a good possibility you will be facing contempt of court trial and jail for not being able pay your alimony when your earnings capacity diminishes in later life like mine did. There will be no closure to your life, no ability to go on with your life with a new family, no peace of mind in your “golden years.”

A lot of people have contacted me regarding their plight and tell me of their hardship in having to pay alimony (especially lifetime alimony as imposed in Florida). If this is your situation, this is the best opportunity you will find to get relief from your burden without spending bundles of money on attorneys. Don’t be like a lot of people who just complain about their plight and do nothing about it. Here is your chance to take a little action that might prove beneficial to you. Do it now to try and stop the further outflow of alimony payments!!

For further details, contact Dick Lindsey at chairman@alimonyreform.org of The Alliance For Freedom From Alimony, Inc. www.alimonyreform.org.

Be sure to join our Yahoo Alimony Reform Forum. There are over 110 members who can give you support with your problems. Also you can keep current on the latest happenings in our efforts to abolish alimony.

Note: This is not legal advice or a solicitation for legal work. Always consult an attorney.

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

Saturday, March 25, 2006

Alimony Is Not A Debt

"Of all injustice, that is the greatest which goes under the name of law; and of all sorts of tyranny the forcing of the letter of the law against the equity, is the most insupportable"
--L. Estrange

For those of you who are under the impression that support is a debt and if you are unable to pay it that they can’t throw you in a debtor’s prison….think again! Read what the courts say.

Oklahoma court says constitutional bar does not extend to enforcement of support orders reduced to judgment, nonpayment of which could lead to jailing.

A state constitutional proclamation that debt shall not be the basis for imprisonment does not preclude the enforcement of unpaid support payments by contempt, even though the payments have been reduced to judgment and the contempt proceeding could result in imprisonment, the Oklahoma Supreme Court decided October 14. The court explained that while the decree (the judicial process) is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines whether the imprisonment is unlawful. It noted that other jurisdictions have held that when the claim underlying the judgment is alimony, the order may be enforced by contempt without violating constitutional restrictions on imprisonment for debt because the nature of alimony is not a debt.

The court rejected the argument that when the alimony payment is reduced to judgment its nature is changed to a judgment debt and thus it becomes a debt coming under the constitutional prohibition. It said that the underlying claim of alimony is not changed into a ''debt'' merely by being reduced to judgment, and it disapproved a 1983 state appellate court decision to the extent that the case could be read as limiting the enforcement mechanism of a support judgment to execution. The chief justice concurred in the result; three others dissented, arguing that the court should not have granted review in this case because it is addressing an issue collateral to the merits of the enforcement of the underlying support obligation. (Sommers v. Sommers, Okla SupCt, No. 87159, 10/14/97)

Digest of Opinion: Article 2, § 13 of the Oklahoma Constitution provides that ''Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.'' The question before us is whether this provision is violated when past due court-ordered alimony payments are reduced to judgment, and that judgment is enforced by a contempt proceeding that could result in imprisonment. We conclude that a contempt proceeding to satisfy an alimony award is constitutionally permissible even though the payments have been reduced to judgment.

Although judicial process, i.e., the decree, is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines if that imprisonment is lawful. We have previously held that the alimony claim underlying the judgment or decree is not a ''debt'' within the meaning of that term in Art. 2 § 13. Ex parte Bighorse, 62 P.2d 487 (1936). Other jurisdictions have likewise concluded that when the claim underlying the judgment is alimony the court's order may be enforced by contempt without violating constitutional restrictions on imprisonment for debt, because the nature of alimony is not a debt. (Ex parte Hall, 854 S.W.2d 656, 19 FLR 1314 (Texas SupCt 1993); Fishman v. Fishman, 656 So.2d 1250, 21 FLR 1190 (Fla SupCt 1995); Missouri ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo SupCt 1976); Dozier v. Dozier, 850 P.2d 789 (Kan SupCt 1993); Middleton v. Middleton, 620 A.2d 1363, 19 FLR 1248 (Md CtApp 1993); Ex parte Thompson, 210 So.2d 808 (Ala SupCt 1968).)

Pursuant to this type of analysis courts look not to the form the judicial process takes, but the nature of the claim underlying that process. In South Carolina v. English, 85 S.E. 721 (SC SupCt 1915), a party argued that marriage was a contract, support was a term of that contract, a breach thereof created a debt, and that debts were not subject to enforcement by contempt. The court disagreed, and explained that the duty of support also arose by statute, that society had a direct interest in the continued performance of the support obligation, and that the husband's failure to pay was a breach of that public duty and not a mere debt owed to the wife. This language is similar to ours in Commons v. Bragg, 80 P.2d 287 (1938). See also Middleton. In addition to defining ''debt'' in such a way that does not include the alimony obligation, some courts have said that the contempt arises from a willful failure to obey the order of the court and pay the alimony, as opposed to imprisonment for debt. See Ensley v. Ensley, 238 S.E.2d 920 (Ga SupCt 1977).

The argument made here is that when the alimony decree-required payment is reduced to a judgment its nature is changed to a ''judgment debt'' and thus a debt for the purpose of Art. 2 § 13. In Doak v. Doak, 104 P.2d 563 (1940), we explained that our district courts possess the power to issue execution to collect money adjudged to be due regardless of whether the action is classified as equitable or legal. In other words, a judgment in a divorce directing immediate payment of money may be enforced by either contempt proceedings or execution. Similar analysis was used in Lipton v. Lipton, 86 S.E.2d 299 (Ga SupCt 1955), and Swanson v. Graham, 179 P.2d 288 (Wash SupCt 1947).

The typical Article 2 § 13 analysis requires examining the underlying claim and not the form of the action or process. In other words, the underlying claim of alimony is not changed into an Art. 2 § 13 ''debt'' merely by enforcing the alimony claim via a judgment and execution as contrasted with a decree and contempt. Generally, even when familial support obligations have been reduced to a judgment they have not been considered as debts within the meaning of constitutional prohibitions against imprisonment for debt, see Pettit v. Pettit, 626 N.E.2d 444 (Ind SupCt 1993) (explaining why child support duty should be enforceable by contempt, even if reduced to a money judgment). See also Gibson v. Bennett, 561 So.2d 565, 16 FLR 1353 (Fla SupCt 1990).

In a similar opinion a Texas court explained that contempt was permissible because a support obligation was not a debt, and that the contempt arose from a willful failure to obey a court order. Ex parte Wilbanks, 722 S.W.2d 221 (CtApp 1986). The Arkansas Supreme Court reached a like result in Gould v. Gould, 823 S.W.2d 890 (1992), where it expressly overruled its former opinion in Nooner v. Nooner, 645 S.W.2d 671 (1983).

While it is true that these opinions from Indiana, Florida, Texas, and Arkansas speak to the child support obligation, dicta therein include spousal support obligations, and the concept that a judgment for arrearage is not a debt for the purpose of constitutional prohibitions against imprisonment for debt. These opinions thus demonstrate the general proposition that reducing a support obligation to judgment does not prohibit contempt proceedings based upon a failure to pay the obligation.

One published opinion of our Court of Civil Appeals does come close to supporting the obligor's argument in this case, see League v. League, 735 P.2d 583 (1983). That opinion was released for publication by that court and has no precedential effect. Okla. Sup.Ct. R. 1.200. Judgment was rendered on the amount of child support arrearage, and the trial court later determined that the father had not paid the judgment and was guilty of indirect contempt. The appellate court determined that judgments for debt may not be enforced via contempt proceedings. The court concluded that when the arrearage was reduced to judgment ''the contempt finding became inoperative and the mother's enforcement remedies were narrowed to those relating to enforcement of the judgment.'' Id. at 585. The appellate court claimed to rely on Wade v. Wade, 570 P.2d 337, 4 FLR 2013 (Okla SupCt 1977). Wade, however, did not limit the enforcement mechanism of a support judgment to that of executions, and League, to the extent that it holds otherwise, is hereby disapproved.

In sum, alimony in the nature of support may be enforced via a court's contempt powers after the alimony payments become due, even after support arrearages are reduced to judgment. For the purposes of Art. 2 § 13 we view a contempt proceeding for willful failure to pay the judgment of arrearage as one for willful disobedience of the underlying support order. The Constitution is not offended. -- Summers, J.

Kauger, C.J., Concurs in result.

Dissent: I would deny the petition for certiorari because it tenders for decision a question collateral to the merits of the obligation sought to be enforced in the proceedings below. -- Simms, Hargrave, Opala, JJ.

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

Saturday, March 18, 2006

Alimony and Co-habitation

"Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly."
--Martin Luther King, Jr.


For the Florida divorcees. Suppose you find out your ex-spouse is shacked up with someone else. If you think it will be easy now to have your alimony terminated, you need to read the Florida Statutes that govern this area.

FL. Stat. 61.14 Enforcement and modification of support, maintenance, or alimony agreements or orders.--

Start reading at 61.14 (1)(b)1

(b)1. The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. On the issue of whether alimony should be reduced or terminated under this paragraph, "the burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists."

2. In determining whether an existing award of alimony should be reduced or terminated because of an alleged supportive relationship between an obligee and a person who is not related by consanguinity or affinity and with whom the obligee resides, the court shall elicit the nature and extent of the relationship in question. The court shall give consideration, without limitation, to circumstances, including, but not limited to, the following, in determining the relationship of an obligee to another person:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as "my husband" or "my wife," or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other's company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

3. This paragraph does not abrogate the requirement that every marriage in this state be solemnized under a license, does not recognize a common law marriage as valid, and does not recognize a de facto marriage. This paragraph recognizes only that relationships do exist that provide economic support equivalent to a marriage and that alimony terminable on remarriage may be reduced or terminated upon the establishment of equivalent equitable circumstances as described in this paragraph. The existence of a conjugal relationship, though it may be relevant to the nature and extent of the relationship, is not necessary for the application of the provisions of this paragraph.

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* They quit to save a mint: Rich guys race divorce deadlines

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

Thursday, March 09, 2006

Debtor’s Prison is Alive and Well

"Undoubtedly it (the Fourteenth Amendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights... It is enough that there is no discrimination in favor of one as against another of the same class. ...And due process of law within the meaning of the [Fifth and Fourteenth] amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government."
Giozza v. Tiernan,

The entire arena of Family Law has become a domain of Constitutional violations and usurpation of civil rights. What a normal person would consider a Debtor's Prison has been instituted. To usurp the Constitution, the courts have "legislated" a perversion of the law declaring "contempt" as the new Debtor's Prison Mantra by stating it is not a debtor's prison because the jailing for contempt can be remedied upon clearing the contempt (i.e. paying the DEBT! Aka Debtor's Prison).

Family Courthouses in America, in practice, have become Family slaughterhouses. Families, children, and our futures are being plundered through the use of junk science represented as 'gold standards.” Destroying families and children in America has become BIG BUSINESS. A MULTI-BILLION DOLLAR INDUSTRY. The deadbeat dad myth, is just that, a myth. ---- Read More

In order to avoid putting you in a now outlawed debtor’s prison for failing to pay your debts, the courts are saying that alimony is not a debt but an obligation. A rose by any other name is still a rose. Therefore, putting you in jail for failing to pay an obligation is not the same as putting you in a debtor’s prison.

By playing with words and redefining them, they are able to incarcerate you without a definite time sentence as they say that you hold the keys to your cell and can get out whenever you want. All you have to do is pay the money. A criminal is given a better deal than you will get. Not only that, as a criminal the state will pay for a lawyer to defend you if you can’t afford one, you are presumed innocent until proven guilty, they get to have a trial by jury and if found guilty, they will be incarcerated for a specified period. None of which you can get if you are charged with contempt.

As you can see, the courts are holding all the cards and they are definitely stacked against you. You are considered guilty unless you can prove your innocence.

Read this article to see how the courts in Texas view a debt:
Debtor’s prison in Texas

Is Alimony Really a Debt?

Even though the court says that the alimony debt is an “obligation”, the following cases show how courts view alimony “debt” where alimony is definitely referred to as a “debt.” So which is it? By redefining it, they now have an opportunity to put you away in a socially accepted manner.

The debt of $800 represented arrears of alimony, granted to his former wife, Florence Audubon, on February 25, 1898, by a decree of the circuit court of Montgomery county, in the state of Maryland, in a cause of divorce, directing him to pay alimony to her at the rate of $50 a month, beginning April 1, 1898. No part of that alimony has been paid.

Alimony does not arise from any business transaction, but from the relation of marriage. It is not founded on contract, express or implied, but on the natural and legal duty of the husband to support the wife. The general obligation to support is made specific by the decree of the court of appropriate jurisdiction.

Generally speaking, alimony may be altered by that court at any time, as the circumstances of the parties may require. The decree of a court of one state, indeed, for the present payment of a definite sum of money as alimony, is a record which is entitled to full faith and credit in another state [181 U.S. 575, 578] and may therefore be there enforced by suit. Barber v. Barber (1858) 21 How. 582, 16 L. ed. 226; Lynde v. Lynde (1901) 181 U.S. 183 , ante, 555, 21 Sup. Ct. Rep. 555. But its obligation in that respect does not affect its nature.

In other respects, alimony cannot ordinarily be enforced by action at law, but only by application to the court which granted it, and subject to the discretion of that court. Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled, than as strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings; and the considerations which affect either can be better weighed by the court having jurisdiction over the relation of husband and wife than by a court of a different jurisdiction.

Examples of legal uses of “debt” and “obligation” interchangeably in relation to alimony:

1. The Agreement Incident to Divorce, Section 7, is in the nature of "alimony" as that term is defined under § 523 of the Bankruptcy Code and is a non-dischargeable debt of Defendant in this bankruptcy

2. The Agreement Incident to Divorce, Section 7 ... and the Final Decree of Divorce ... create a non-dischargeable obligation on the part of Defendant pursuant to 11 U.S.C. § 523 as such creates an "alimony" obligation owing by Defendant to Plaintiff.

"One of the most venerable principles of American bankruptcy law is that a debtor's obligation to provide alimony or support to a spouse or former spouse will not be affected by the discharge order."

In re Tessler, 44 B.R. 786, 787 (Bankr.S.D.Cal.1984) (citing Audubon v. Shufeldt, 181 U.S. 575, 579, 21 S.Ct. 735, 736, 45 L.Ed. 1009 (1901)). This concept is found in the Bankruptcy Code as § 523(a)(5), which exempts from discharge any debt owed to a former spouse or child for alimony, maintenance, or support. Matter of Joseph, 16 F.3d 86, 87 (5th Cir.1994).

Property settlements, on the other hand, are dischargeable in bankruptcy. In re Brody, 3 F.3d 35, 38 (2d Cir.1993).(3) " "Whether a particular obligation constitutes alimony, maintenance, or support within the meaning of this section is a matter of federal bankruptcy law, not state law,' "(4) and is determined by examining the nature of the debt at the time it was created.

Matter of Davidson, 947 F.2d 1294, 1296-97 (5th Cir.1991); In re Wisniewski, 109 B.R. 926, 929 (Bankr.E.D.Wis.1990); In re Jenkins, 94 B.R. 355, 360 (Bankr.E.D.Pa.1988); In re Brown, 46 B.R. 612, 614 (Bankr.S.D.Ohio 1985). "The circumstances of the parties subsequent to the entry of the judgment for divorce is irrelevant to that inquiry." In re Larson, 169 B.R. 945, 952 (Bankr.D.N.D.1994).

3. Whether Maddigan's Debt” to Falk & Siemer is Nondischargeable in Bankruptcy
In order for the “debt” Maddigan owes Falk & Siemer to be nondischargeable under § 523(a)(5), three statutory requirements must be met. First, the “debt” must be "to a spouse, former spouse, or child of the debtor." 11 U.S.C. § 523(a)(5). Second, the debt must be "actually in the nature of" (as opposed to simply designated as) alimony, maintenance, or support. Id. § 523(a)(5)(B). Third, the “debt” must have been incurred "in connection with a separation agreement, divorce decree or other order of a court of record." Id. § 523(a)(5). We address each element in turn.

4. Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no apparent reason why Congress, acting on the implications of Marshall's words in Hampton v. McConnell, 16 U.S. (3 Wheat.) 234 (1818), should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several States. Thus, why should not a judgment for alimony be made directly enforceable in sister States instead of merely furnishing the basis of an action in “debt”?

5. Graves v. Myrvang
(a) A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt -- . . . . (15) not of the kind described in paragraph (5) [for alimony, maintenance, or support] that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, a determination made in accordance with State or territorial law by a governmental unit unless –
3 The parties have not briefed, and we do not decide, whether the disposable income test of 11 U.S.C. S 1325(b)(2) is the exclusive method that a bankruptcy court must employ in determining ability to pay under S 523(a)(15)(A). We note, however, that courts have employed a variety of approaches in determining a debtor's ability to pay a divorce-related debt.

Related articles:
Blanton v. City of North Las Vegas – Incarceration for contempt of court

In Blanton v. City of North Las Vegas (US-1989) it was ruled: "offenses for which the maximum period of incarceration is six months, or less, are presumptively petty...a defendant can overcome this, and become entitled to a jury trial,..by showing that additional penalties [such as monetary fines]...are...so severe [as to indicate] that the legislature clearly determined that the offense is a serious one."

Related Websites:
* Debtor’s Prison is Alive and Well
* Do poor fathers deserve debtor’s prison.

* Legal Research and Citation Style in USA

* Dog law as applied to contempt hearings: Is it outrageous? You decide.
* Contempt of (Florida) court arrest enforcement outside the State of Florida: Is it legal?? Read this 2nd District Court of Appeals ruling.

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

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
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

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

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).

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).

* Men more likely to commit suicide after divorce, study finds

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* Judge reprimanded for expunging criminal records

* 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

* Court of Supreme Importance

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

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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