Chamberlain v. Chamberlain
| Citation | 588 So.2d 20 |
| Decision Date | 21 October 1991 |
| Docket Number | No. 90-2697,90-2697 |
| Parties | 16 Fla. L. Weekly D2708 Mary Ann CHAMBERLAIN, a/k/a Mary Ann Nichols, Appellant, v. Russell G. CHAMBERLAIN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Richard M. Powers of Richard M. Powers, P.A., Tallahassee, for appellant.
Michael A. Flowers of Chesser, Wingard, Barr, Whitney, Flowers and Fleet, P.A., Shalimar, for appellee.
This appeal is from a final order revoking the former wife's award of rehabilitative alimony and incarcerating her for contempt. We affirm the revocation of rehabilitative alimony and reverse the contempt order.
The Chamberlains were married in 1984 and divorced on February 5, 1990. The final judgment for dissolution of marriage provided in part that (1) Russell Chamberlain shall pay rehabilitative alimony, and (2) Russell Chamberlain shall receive all personal property in his possession as well as all personal property and inheritance which he had prior to the marriage.
On February 23, 1990, the former husband Russell Chamberlain returned home to find that his home had been emptied. All the personal property and inheritance which was to remain with him under the divorce decree was gone, including light fixtures, ceiling fans and shower heads. The words "SINK OR SWIM" were painted onto the front door. Mr. Chamberlain was certain Mrs. Chamberlain took the missing items; and apparently the sheriff's office agreed since they would not investigate the 'civil' matter.
On March 23, 1990, the former wife, Mary Ann Chamberlain, filed a pro se motion for contempt on the ground the former husband did not pay February alimony. On April 17, 1990, the former husband filed a motion for contempt and to deny alimony on the ground the former wife either disposed of or failed to deliver the former husband's property.
The former wife filed a request for court-appointed counsel. The record does not indicate whether the request was ruled upon; but the order on appeal states the former wife appeared before the trial court unrepresented by counsel.
After a hearing on the former wife's motion for contempt and the former husband's motion for contempt and motion to deny alimony, the former wife was remanded to county jail on June 19, 1990, to serve 30 days for contempt. The hearing was not recorded.
The former wife was released on July 13, 1990. On July 17, 1990, after the incarceration, the trial court entered a written order relieving the former husband of his alimony obligation "and any such other financial responsibility as outlined in the Final Judgment for Dissolution of Marriage," and finding the former wife
in contempt of this Court for knowingly removing items awarded to the Former Husband in the Final Judgment for Dissolution of Marriage from the marital home and testifying contradictory of these facts to the Court.... The Former Wife shall be incarcerated in the Okaloosa County Jail for a period of 30 days for knowingly testifying falsely to this court.
The former wife obtained counsel to appeal the July 17, 1990 order. She argues on appeal that (1) a modification of alimony requires a showing of a change in circumstances regarding the financial ability of either party, and (2) the record does not demonstrate the trial court complied with Florida Rule of Criminal Procedure 3.830 when it found the former wife in contempt. Rule 3.830 states in part
The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
Florida Rule of Appellate Procedure 9.200(e) states "[t]he burden to ensure that the record is prepared and transmitted in accordance with these rules shall be on the ... appellant." If the record is insufficient to demonstrate reversible error, the case must be affirmed. JOA Corp. v. Lamerica Realty Co. of Miami, 435 So.2d 972 (Fla. 3d DCA 1983); see also, City of Hialeah v. Cascardo, 443 So.2d 448 (Fla. 1st DCA 1984). Because the hearing which resulted in the revocation of rehabilitative alimony was not recorded, there is no way to know what evidence was presented or which issues are preserved; and there is no basis on which to find the trial court abused its discretion in revoking the former wife's rehabilitative...
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Pole v. State
...with the procedural requirements of Fla. R. Crim. P. 3.830... for prosecuting a direct criminal contempt.” Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991). “[T]he contemnor's right to due process require[s] that the trial court ensure that a record is made of a criminal con......
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Higgins v. Higgins, 2D06-286.
...P. 3.721. The circuit court's failure to do so in this case requires us to reverse the contempt order. See Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991). Beyond this, the contempt order itself reflects that two of its three bases were not punishable as direct criminal con......
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Hoover v. Sprecher, 91-2250
...which to find that the lower tribunal abused its discretion in denying Appellant's motions for attorney's fees. Chamberlain v. Chamberlain, 588 So.2d 20, 22 (Fla. 1st DCA 1991); Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982). Accordingly, we An evidentiary hearing was conducted on Dece......
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Harris v. State, 98-2293
...from the tape recording of the hearing which resulted in the order on appeal. Appellee properly concedes error. Chamberlain v. Chamberlain, 588 So.2d 20, 23 (Fla. 1st DCA 1991). Accordingly, we reverse and remand with directions to immediately release appellant from No motion for rehearing ......