Alex Diaz De La Portilla v. State
| Citation | 142 So.3d 928 |
| Decision Date | 14 July 2014 |
| Docket Number | No. 1D11–5126.,1D11–5126. |
| Parties | Alex DIAZ DE LA PORTILLA, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
OPINION TEXT STARTS HERE
Miguel Diaz De La Portilla of Becker & Poliakoff, P.A., Coral Gables, and Arthur J. Berger, Miami, for Appellant.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
In this marital dissolution case, what initially was a spat over the family dogs spiraled into a direct criminal contempt order that is now the subject of this appeal. During the course of the proceeding, which the couple has now settled, the former husband, Alex Diaz de la Portilla, was ordered (by the first of two trial judges in this case) to turn over one of the couple's two dogs by February 16, 2011. He failed to do so, resulting in his now-former wife filing a motion for contempt, which was set for hearing by the trial judge who issued a show cause order compelling Diaz de la Portilla to appear. Due to the first trial judge's recusal, the scheduled hearing was cancelled, but the former wife renewed her motion after a successor judge was assigned. At the July 20, 2011 hearing on the renewed motion before the successor judge, Diaz de la Portilla did not appear, causing the trial judge to pronounce he was holding Diaz de la Portilla in civil contempt for failing to comply with the prior judge's order compelling transfer of the dog. Diaz de la Portilla was given until Friday, July 22nd, to comply with the dog-transfer order or be committed to the Leon County jail for thirty days. The trial court's findings and rulings were later memorialized in a written order, which Diaz de la Portilla appealed, reiterating his argument that a trial court cannot seek to enforce an interim equitable distribution of personal property (here, the dogs) by contempt order.
Despite the trial court's order, the dog was not transferred, causing another contempt motion to be filed with notice served on Diaz de la Portilla's counsel. At the August 23, 2011 hearing on the motion,1 only Diaz de la Portilla's counsel was present, offering no explanation for his client's absence. As it did the first time, the trial court again verbally pronounced Diaz de la Portilla in civil contempt, not only for not appearing pursuant to court order but also for failing to comply with the dog-transfer order. The trial court sentenced Diaz de la Portilla to five months and twenty-nine days in jail, and further found him in direct criminal contempt, ordering the same sentence to run consecutively with the civil contempt sentence. The trial court explained:
At this juncture in this case it is my opinion that it is no longer practical, no longer possible for me to coerce compliance because your client is not going to do it. He is going to absent himself; he is going to continue to vilify his wife; he is going to continue to thumb his nose at this Court and to challenge my authority to enforce not only my Orders but the Orders of [the predecessor judge.] ... Based upon the sworn Motion and the sworn testimony today I find him to be in civil contempt for not appearing today and not giving the dog to her as per [the predecessor judge's] Order. He is hereby sentenced to serve five months and 29 days for that contempt. In addition, based upon the fact that I have ordered him to appear and he has not appeared here today I find him in direct criminal contempt. He is also ordered to spend five months and 29 days for direct criminal contempt. And those two contempts are to run consecutive to one another. So I will prepare a written Order and written findings as to my findings today. And he has absolutely one hundred percent right to purge himself of this contempt by following the act that he has been ordered to follow since February 18th and that is give her one of the dogs during the pendency of these proceedings.
Two days later, the trial court entered a written order, finding that: the court had ordered Diaz de la Portilla to appear by serving notice to Diaz de la Portilla's counsel (because the trial judge did not know the location of Diaz de la Portilla); Diaz de la Portilla's counsel did not offer a reason for why his client did not appear; the court could not question Diaz de la Portilla due to his failure to appear; and Diaz de la Portilla's actions “were wilful [sic] contempt that occurred beyond a reasonable doubt directly in the presence of the Court and warranted appropriate sanctions.”
Appeals were filed in which Diaz de la Portilla challenged the trial court's orders of civil and criminal contempt, which this Court stayed and consolidated for review and disposition. Resolution of the appeals has been delayed due to various procedural matters and two intervening developments. First, the former spouses entered a settlement agreement in December 2011, which included Diaz de la Portilla obtaining both dogs. As a part of the settlement, the parties agreed to recommend to the trial judge that all civil and criminal contempt orders be vacated, which the trial judge agreed to do except for the criminal contempt order because it was pending on appeal in this Court. As a result, Diaz de la Portilla dismissed the consolidated appeals relating to the civil contempt orders, asking this Court to relinquish jurisdiction to the trial judge to consider the parties' recommendation to dismiss the criminal contempt order, which this Court granted.
In its May 12, 2012 order, the trial court, recounting the lengthy history that led to the criminal contempt order, refused to vacate the order, which—according to the trial court—was based on Diaz de la Portilla's “concerted efforts” to interfere with the court's resolution of the case, his willful failures to comply with court orders and appear in court, his “conscious attempts” to prevent judicial resolution of the case, and “his utter disdain for the Courts (and all three Judges assigned to this case), coupled with his public pronouncements that he would not comply with any Orders and had no respect for the Court's decisions.” Because the trial court denied the parties' request to vacate the criminal contempt order, the appeal currently before us, therefore, relates only to the order holding Diaz de la Portilla in direct criminal contempt.
Next, the matter returned to this Court but was delayed due to requested briefing extensions, an amended initial brief being filed in December 2012. In light of the case being “in the nature of a contempt proceeding solely for the purpose of vindicating the authority and dignity” of the trial court, it was determined that the State of Florida was an indispensable party. See In re Local Lodge No. 1248 of Int'l Ass'n of Machinists, 131 So.2d 29, 35 (Fla. 1st DCA 1961). The case was restyled to include the State as the appellee, and the Office of the Attorney General was asked to file an answer brief, which it did in October 2013. A reply brief followed in November 2013, rendering this appeal ready for disposition.
I.
On appeal, Diaz de la Portilla asserts the trial court erred in holding him in direct criminal contempt because he was not served with the order to show cause nor was he personally subpoenaed to appear, thereby denying him due process. He claims it was fundamental error to hold him in direct criminal contempt without his presence or a finding that his non-appearance was intentional. He also argues that the record evidence is insufficient to establish a basis for direct criminal contempt arising from his non-appearance, and that he did nothing to obstruct the trial court's ability to hold the hearing because, in fact, the hearing was held.
The State responds by distinguishing between direct and indirect criminal contempt, noting that the former requires that the contemptuous act must occur in the immediate presence of the court, while the latter proceeding involves an act committed out of the presence of the court. It notes that the trial court's order is based on caselaw that is binding in this District, holding that a failure to appear can be considered direct criminal contempt, even though physical presence before the trial judge is lacking. See Speer v. State, 742 So.2d 373, 373 (Fla. 1st DCA 1999) (). Most districts hold similarly. See, e.g., Bouie v. State, 784 So.2d 521, 522 (Fla. 4th DCA 2001) (); Woods v. State, 600 So.2d 27, 29 (Fla. 4th DCA 1992) (); Porter v. Williams, 392 So.2d 59, 60 (Fla. 5th DCA 1981) (); but cf. Hayes v. State, 592 So.2d 327, 329 (Fla. 4th DCA 1992) ().
As the State points out, this line of cases originates from the Florida Supreme Court's two paragraph per curiam decision in Aron v. Huttoe, 265 So.2d 699 (Fla.1972), which affirmed the Third District's holding that a trial court may hold a non-appearing witness in direct criminal contemptdue to the witness's failure to appear, without justification, pursuant to a properly issued subpoena. The witness at issue, Dr. Aron, failed to appear at trial, causing the trial judge to immediately have him arrested and brought to court for questioning. Aron v. Huttoe, 258 So.2d 272, 272 (Fla. 3d DCA 1972). Dr. Aron admitted he had been subpoenaed, but “got mixed up” and returned to his medical office after appearing in another case that...
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