Erskine v. Erskine

• Decision Date: 27 July 2022
• Docket Number: s. 1D20-707,1D20-2337
• Citation: 344 So.3d 566
• Parties: Aaron Matthew ERSKINE, Husband, Appellant, v. Lela Ann ERSKINE, Wife, Appellee.
• Court: Florida District Court of Appeals

344 So.3d 566

Aaron Matthew ERSKINE, Husband, Appellant,

v.Lela Ann ERSKINE, Wife, Appellee.

Nos. 1D20-707

1D20-2337

District Court of Appeal of Florida, First District.

July 27, 2022

Bradley G. Johnson of Bradley G. Johnson, P.A., Milton, for Appellant.

Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.

Tanenbaum, J.

In these consolidated appeals arising out of dissolution proceedings, the husband seeks review of two orders. In case number 20-707, the husband asks us to consider what he characterizes as a non-final order, one in which the trial court found him in willful contempt based on the wife's third motion for enforcement (the "contempt order"). The order directed that the husband produce a complete accounting of his liquid assets, including funds he pulled out of a retirement account that the court construed as being at least partially a marital asset. He supposedly put those funds toward paying off an earlier enforcement order for temporary support, which we later reversed. In the contempt order on appeal here, the trial court also granted the wife her attorney's fees that she incurred in connection with her third enforcement motion, but it put off determining the amount for a later date.

In case number 20-2337, the husband seeks review of a second order. This one came after the husband appealed the contempt order. In this second order (the "appellate fee order"), the trial court directed the husband to pay $5,000 in temporary attorney's fees to the wife's counsel for representation in the appeals, pursuant to section 61.16, Florida Statutes. To be clear, the award had nothing to do with the merits of this appeal or whether the wife was likely to prevail in this court. This is a marriage dissolution case, and the fee award was essentially suit money as a form of temporary alimony—the trial court made the award based on the wife's financial need and the husband's ability to pay.

We will explain our disposition below, but here is the abstract. The contempt order is not reviewable under the rule allowing for appeals of non-final orders, and it is not the type of order for which certiorari relief is available. That appeal, then, will be dismissed. As to the appellate fee order, we reject the husband's argument that the trial court did not have sufficient authority, under section 61.16 alone, to award temporary fees to the wife so that she could participate in this appeal through counsel. Because the husband did not attempt to submit evidence that showed a material change in his financial condition since entry of the earlier temporary support order, and because the trial court was free to consider all of the circumstances of the case—including the husband's prior conduct and non-credible testimony—we cannot say that the court abused its discretion when it awarded the wife temporary attorney's fees to cover these appeals. We, then, will affirm the appellate fee order.

I

First, we address the husband's challenge to the contempt order. In 2018, the trial court ordered the husband to pay $80,000 toward the wife's temporary support. The husband appealed that support order, and this court reversed and remanded. See Erskine v. Erskine , 262 So. 3d 223 (Fla. 1st DCA 2018). While the support order was on appeal, though, the trial court granted the wife's second motion for enforcement of that support order (the court denied the husband's request for a stay) and directed the husband to pay the $80,000 in temporary support or be subject to contempt. That same day, the husband liquidated a retirement account to pay the amount ordered in support.

In 2019, after the mandate from this court had issued and the support order had been vacated, the wife filed a third enforcement motion. The wife pointed out several deficiencies that she wanted the court to rectify—primarily his failure to make a variety of support payments previously ordered by the court—and she asked that the trial court find the husband in contempt based on the liquidation of the retirement account. According to the wife, the account was a disputed marital asset and subject to the standing pretrial order that she claimed prevented such action without her consent or an additional order from the court.

After a hearing, the trial court agreed with the wife that the husband's compliance with his support obligations was deficient in several ways. One of those ways had to do with the retirement account. The court determined that the retirement account was either wholly or partially a marital asset and that the husband willfully dissipated the funds from that account. The trial court in turn found the husband's action to be contemptuous and ordered that within sixty days he provide a complete accounting of both the liquid assets that the husband had listed on his financial affidavit and the funds from the liquidated retirement account. The trial court also awarded the wife the attorney's fees she incurred to file and pursue the third motion for enforcement, but it reserved jurisdiction to consider the amount and method of payment.

The husband's notice of appeal characterizes this enforcement order as non-final. His initial brief addresses only the part of the order that dealt with the retirement account and asserts that the trial court abused its discretion when it found him in contempt and ordered the accounting. For this court to have jurisdiction over such an appeal, the order on review must be of a type listed in Florida Rule of Appellate Procedure 9.130. Cf. Art. V, § 4(b)(1), Fla. Const. (giving district courts of appeal jurisdiction over "interlocutory orders in such cases to the extent provided by rules adopted by the supreme court"). Even though this is a family law matter, the order does not appear to determine a "right to immediate monetary relief"; a right or obligation "regarding child custody or time-sharing"; or the wholesale invalidity of "a marital agreement." Fla. R. App. P. 9.130(a)(3)(C)(iii).¹ In a show-cause order, we asked the husband about this possible jurisdictional defect. He seemingly concedes that there is no appellate jurisdiction by instead contending, without elaboration, that he will suffer irreparable harm from being found to be in willful contempt for having dissipated the retirement account funds and from having to account for the liquid assets and funds. By the husband's response, we consider his original request for direct appellate review to be one for certiorari review. See Fla. R. App. P. 9.040(c) (requiring that cause "be treated as if the proper remedy had been sought" when "a party seeks an improper remedy").

Even so, we still do not have jurisdiction in case number 20-707. Certiorari is an extraordinary, common-law writ. It does "not [ ] take the place of a writ of error or an appeal"; it instead permits an appellate court to "determine from the face of the record whether the inferior court has exceeded its jurisdiction, or has not proceeded according to the essential requirements of the law, in cases where no direct appellate proceedings are provided by law." Seaboard Air Line Ry. v. Ray , 52 Fla. 634, 42 So. 714, 715 (1906) ; see also Robinson v. State , 132 So. 2d 3, 5 (Fla. 1961) ("In situations in which review of a judgment or decree of a lower court is not otherwise provided for, the District Courts of Appeal are endowed with powers of review limited to a determination of whether the judgment constitutes a deviation from the essential requirements of the law."). In the light of this limited scope of certiorari relief, the husband must make a threshold, jurisdictional showing that the claimed harm stemming from the order could not be remedied later on direct review either of an appealable non-final order or of a final order. See Citizens Prop. Ins. Corp. v. San Perdido Ass'n, Inc. , 104 So. 3d 344, 351 (Fla. 2012) (explaining that in considering a certiorari petition, "the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm"); see also Jaye v. Royal Saxon, Inc. , 720 So. 2d 214, 215 (Fla. 1998) (approving dismissal of certiorari petition for want of jurisdiction because the denial of a jury trial demand does not cause "an irreparable harm that cannot be remedied on direct appeal").

This, the husband fails to do. For the most part, all the trial court did was make factual determinations about the husband's dissipation of funds and contemptuous nature of that conduct. The trial court at the same time refrained from imposing the ordinary sanctions for civil contempt. See Bowen v. Bowen , 471 So. 2d 1274, 1277 (Fla. 1985) (explaining that "the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court," so incarceration "must be used only when the contemnor has the ability to comply"); Fla. Fam. L. R. P. 12.615(d), (e) (setting out the procedure for incarceration and purge to obtain compliance); cf. Senterfitt v. Oaks , 775 So. 2d 431, 431 (Fla. 1st DCA 2001) (granting certiorari petition and quashing erroneous contempt order that directed former husband incarcerated until he paid child support arrearage due to a lack of evidence as to his ability to pay purge amount); Thurman v. Thurman , 637 So. 2d 64, 65 (Fla. 1st DCA 1994) (affirming a contempt order that directed former husband incarcerated due to nonpayment of child support and alimony but amending the order to contain purge provision).

Instead, the trial court ordered that the husband account for his liquid assets and for the funds that were in the retirement account. The "sanction" essentially required more disclosure in place of imposition of a monetary sanction or reduction of liberty. In this sense, the trial court did not order much more than what already is required in the way of financial disclosures. See Fla. Fam. L. R. P. 12.285, 12.287. We are hard-pressed to see how...