Andrews v. Walton, 61051

• Decision Date: 24 March 1983
• Docket Number: No. 61051,61051
• Citation: 428 So.2d 663
• Parties: Albert ANDREWS, Jr., Petitioner, v. Ada Mae WALTON, and the Florida Department of Health and Rehabilitative Services, Respondents.
• Court: Florida Supreme Court

Page 663

428 So.2d 663

Albert ANDREWS, Jr., Petitioner, v. Ada Mae WALTON, and the Florida Department of Health and Rehabilitative Services, Respondents.

No. 61051.

Supreme Court of Florida.

March 24, 1983.

Stuart E. Soff, Fla. Rural Legal Services, Inc., Belle Glade, for petitioner.

Charles L. Carlton of Carlton & Carlton, Lakeland, Joseph R. Boyd, W. Crit Smith of Boyd & Smith, and Chriss Walker, Office of Child Support Enforcement, Dept. of Health and Rehabilitative Services, Tallahassee, for respondents.

OVERTON, Justice.

We grant the petition for clarification and rehearing, both parties having requested that we address the issue of petitioner's right to counsel in this civil contempt proceeding for failure to pay child support. Accordingly, we vacate our summary affirmance rendered July 15, 1982.

The original petition sought review of the decision of the Second District Court of Appeal in Andrews v. Walton, 400 So.2d 790 (Fla. 2d DCA 1981), which was in direct conflict with the opinion of the Third District Court of Appeal in Chapman v. Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980), aff'd in part, rev'd in part, 413 So.2d 749 (Fla.1982). The point of conflict concerned whether sections 409.2561(1)-(3), Florida Statutes (1979), granting the Department of Health and Rehabilitative Services (the department) power to institute civil contempt proceedings to collect child support arrearages in repayment of public assistance payments, violated the right to be free from imprisonment for debt guaranteed by article I, section 11, Florida Constitution. We resolved the conflict in our recent opinion in Lamm v. Chapman, 413 So.2d 749 (Fla.1982), in which we approved the decision in Andrews and disapproved the decision in Chapman holding that

the acceptance of public assistance for the support of a dependent child vests in the department the authority to proceed with all remedies available to the child's custodian. The state must have the power to ensure that the responsible parent, to the extent that he or she has the ability to pay, reimburse the state for public assistance moneys expended for the benefit of a dependent child and provide continuing reasonable child support.

Lamm, 413 So.2d at 753.

Petitioner asserts that, because he was "faced with incarceration and thus a fundamental deprivation of his liberty," his right to due process under the fourteenth amendment was violated when the trial court failed to advise him of his right to counsel and to provide him counsel in the civil contempt proceedings. In the instant case, the trial court sentenced petitioner to thirty days in jail for contempt, finding that petitioner had the ability to pay the court-ordered $15 a week in child support since he was earning take-home pay of $230 every two weeks; that he willfully refused to pay; that he could purge himself with payment of $300 of the $544 total arrearage; that he had the ability to pay the purge amount; and that the sentence would be postponed to allow him time to use his next paycheck to purge himself of contempt.

In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the United States Supreme Court refused to adopt a per se rule that due process requires appointed counsel for indigents in parental termination cases and reemphasized the principle that the right to due process is the right to judicial processes which are "fundamentally fair." This concept of fundamental fairness is the basis for the presumption that "an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Id. at 26-27, 101 S.Ct. at 2159.

Without question, anyone facing contempt charges, either criminal or civil, is under threat of imprisonment. But a distinction has historically been drawn between criminal contempt, which is punitive in nature, and civil contempt, which is remedial or coercive. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956); In re S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965). Criminal contempt proceedings are "maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court." Pugliese, 347 So.2d at 424. Criminal contempt proceedings are "effectively criminal in nature and persons accused of [criminal] contempt are as much entitled to the basic constitutional rights as are those accused of violating criminal statutes." Aaron v. State, 284 So.2d 673, 675 (Fla.1973) (footnote omitted); see Fla.R.Crim.P. 3.830 and 3.840.

A civil contempt proceeding is very different in origin and purpose from a criminal contempt proceeding:

If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type [of] contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor's sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor "carries the key to his cell in his own pocket."

Pugliese, 347 So.2d at 424. The sixth...