Brown v. Smith

Decision Date28 January 1998
Docket NumberNo. 97-0590,97-0590
Citation705 So.2d 682
Parties23 Fla. L. Weekly D335 Jana M. BROWN, Appellant, v. Ira SMITH, Appellee.
CourtFlorida District Court of Appeals

Mark S. London of the Law Offices of Mark S. London, P.A., Hollywood, for appellant.

Donald Loughran, Coral Springs, for appellee.

RAMIREZ, JUAN, Jr., Associate Judge.

The appellant, Jana M. Brown, raises two issues on appeal, both of which warrant reversal. The trial court erred by failing to find the appellee, Ira Smith, guilty of criminal or civil contempt and by modifying the visitation arrangements beyond the scope of the pleadings.

The parties' marriage produced a son, born in May, 1989. They entered into a marital settlement agreement which was incorporated into the final judgment of dissolution of marriage. The agreement provided that the mother was to be the primary residential parent and would receive $100.00 a week in child support. The father had visitation rights every weekend and alternating holidays.

Mother filed a petition to modify visitation based on a substantial change in circumstances. At the time of the settlement agreement, the child was two years old and the mother had to work virtually every weekend. The child was now seven years old and attending school, and the mother felt that she had almost no "quality time" to spend with her son. Additionally, she had changed her work schedule so that she no longer worked weekends. She also alleged that the father was almost $20,000 in arrears in his child support obligation. She requested the court to enter an order to show cause why the father should not be held in indirect criminal contempt and for civil contempt based on his failure to pay child support. Despite two prior adjudications of contempt, the father had continued to pay child support sporadically. In March, 1993, the mother withdrew her motion for commitment after the father's family promised that they would provide support for the child. However, the child support payments continued only sporadically, if at all. In fact, the mother presented evidence that, unbeknownst to her, the father had collected welfare for two years, starting in June, 1993, which included Aid for Dependent Children. He did so by misrepresenting himself as the primary residential parent. The father allocated only a fraction of this money for child support.

In his defense, the father offered that at the time of the final judgment, he was earning over $100,000 a year, but shortly after the dissolution, he was terminated from his employment. Since then he had started two direct marketing companies, both of which had failed. He filed for bankruptcy and began suffering from a chronic back condition which adversely affected his earning capacity. In April, 1993, the father received public assistance until he had corrective back surgery in January, 1995. He has been living with his parents, who have paid part of the child care expenses.

After an evidentiary hearing, the trial court found the father to be $19,090.25 in arrears in his child support obligation but

                was "not prepared to institute the drastic relief of indirect criminal contempt at this time."   The trial court stated that "based upon the testimony the Court has already heard, there is serious doubt that there would be a finding of an ability to pay and a knowing and willful disregard of the Final Judgment, both of which are necessary to hold the Former Husband in indirect criminal contempt."
                
CRIMINAL CONTEMPT

In Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), the Florida Supreme Court explained the purpose and standards for civil and criminal contempt in family law proceedings. The purpose of a civil contempt proceeding is to obtain compliance with a court order. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. However, criminal contempt is punitive in nature and requires special procedures. "Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court." Id. at 1277. Such a special procedure gives "potential criminal contemnors the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings." Id.; LeNeve v. Navarro, 565 So.2d 836, 837 (Fla. 4th DCA 1990).

Criminal contempt proceedings are appropriate where the party in default has continually and willfully neglected court-ordered support obligations, or has affirmatively divested him or herself of assets and property. See Bowen at 1279. "An indirect criminal contempt proceeding must fully comply with rule 3.840, Florida Rules of Criminal Procedure, and defendants are entitled to the appropriate due process protections, which may include court-appointed counsel. In such a proceeding, the movant must prove, beyond a reasonable doubt, that the defendant willfully violated the court order." Id.; see also Pompey v. Cochran, 685 So.2d 1007, 1013 (Fla. 4th DCA 1997) (a court may sentence a criminal contemnor to imprisonment for a definite term or to pay a punitive fine, but these criminal sanctions may not be imposed unless a contemnor has been afforded the same constitutional due process protections to which criminal defendants are entitled, including the right to be represented by counsel, the requirement that the offense be proved beyond a reasonable doubt, and the privilege against self-incrimination); Washington v. Burk, 704 So.2d 540 (Fla. 5th DCA 1997) (speedy trial rule applied to indirect criminal contempt proceeding against defendant), rev. granted, 695 So.2d 698 (Fla.1997); Kersh v. State Farm Fire & Cas. Co., 686 So.2d 782 (Fla. 3d DCA 1997) (the defendant must be afforded notice of the charge, the specifics as to what conduct constituted the alleged contempt, and a hearing).

In the instant case, the trial court refused to initiate an indirect criminal contempt proceeding by issuing an order to show cause. The reason expressed was that the father lacked the present ability to pay. In so holding, the trial court erroneously confused civil contempt with criminal contempt. The Bowen opinion clearly envisioned the possibility of finding a defendant guilty of indirect criminal contempt even in the absence of a present ability to pay. See Robbins v. Robbins, 429 So.2d 424, 431 (Fla. 3d DCA 1983) (a lack of ability to pay turned the civil contempt proceedings into criminal contempt). We remand with instructions to issue a rule to show cause pursuant to rule 3.840 of the Florida Rules of Criminal Procedure.

CIVIL CONTEMPT

The trial court correctly refused to order incarceration of the father based on the finding that he lacked the present ability to pay the arrears in child support. See Bowen, at 1277 (...

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6 cases
  • Whitby v. Infinity Radio, Inc.
    • United States
    • Florida District Court of Appeals
    • June 6, 2007
    ...the contemnor carries `the keys of (his) prison in (his) own pockets.' Id. at 46 (citations omitted); see also Brown v. Smith, 705 So.2d 682, 684 (Fla. 4th DCA 1998) (citing Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) ("The purpose of a civil contempt proceeding is to obtain compliance with a......
  • Elliott v. Palm Beach County Sheriff Ric Bradshaw
    • United States
    • Florida District Court of Appeals
    • April 11, 2011
    ...neglected court-ordered support obligations, or has affirmatively divested him or herself of assets and property.” Brown v. Smith, 705 So.2d 682, 684 (Fla. 4th DCA 1998) (citing Bowen, 471 So.2d at 1279). The law is clear that husband cannot be incarcerated indefinitely for civil contempt w......
  • Lascaibar v. Lascaibar, 97-2386
    • United States
    • Florida District Court of Appeals
    • July 29, 1998
    ...criminal and civil, for enforcement of orders for support arrearages, even after a money judgment has been entered. Brown v. Smith, 705 So.2d 682 (Fla. 4th DCA 1998) as well as Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) clearly envision finding a defendant guilty of indirect criminal contemp......
  • Plunkett v. Plunkett, 4D02-867.
    • United States
    • Florida District Court of Appeals
    • April 30, 2003
    ...and establish a payment plan with respect to all fee awards, except the first in the amount of $7,500.00.1See generally Brown v. Smith, 705 So.2d 682 (Fla. 4th DCA 1998). We also hold that the former wife is entitled to prejudgment interest on the fee award. See Quality Engineered Installat......
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3 books & journal articles
  • Enforcement of orders and judgments
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...available to contemnor, from whatever source, must be considered in determining present ability to comply with purge); Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA 1998) (insufficient for order to say husband has ability to pay as previously ordered or had ability to pay at time payments ac......
  • Pleadings and mandatory electronic filing
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...without prior consent of noncusto-dial parent or court, even absent evidence that custodial parent intends to move); Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA 1998) (trial court erred in determination of visitation where not requested by pleadings); Dept. of Revenue v. Hicks, 681 So. 2d ......
  • Age-appropriate time sharing for divorced parents.
    • United States
    • Florida Bar Journal Vol. 81 No. 6, June 2007
    • June 1, 2007
    ...v. Wattles, 631 So. 2d 349, 350 (Fla. 5th D.C.A. 1994). (23) Owen v. Owen, 633 So. 2d 1156 (Fla. 5th D.C.A. 1994). (24) Brown v. Smith, 705 So. 2d 682, 685 (Fla. 4th D.C.A. 1998); Mendelson v. Gil, 877 So. 2d 753, 754 (Fla. 3d D.C.A. (25) Kelley v. Kelley, 656 So. 2d. 1343, 1346 (Fla. 5th D......

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