Faircloth v. Faircloth, W--506

• Decision Date: 29 October 1975
• Docket Number: No. W--506,W--506
• Citation: 321 So.2d 87
• Parties: Richard L. K. FAIRCLOTH, Appellant, v. Barbara Hall FAIRCLOTH, Appellee.
• Court: Florida District Court of Appeals

Page 87

321 So.2d 87

Richard L. K. FAIRCLOTH, Appellant, v. Barbara Hall FAIRCLOTH, Appellee.

No. W--506.

District Court of Appeal of Florida, First District.

Oct. 29, 1975.

John S. Winnie, Winnie & Winnie, Gainesville, for appellant.

Peter Enwall, Gainesville, for appellee.

McCORD, Judge.

This is an appeal from a judgment holding appellant in contempt of court and sentencing him to five months and 29 days but withholding commitment for 10 days to give appellant an opportunity to purge himself of contempt by paying $4,300 in arrearages incurred under the final judgment of dissolution of marriage between appellant and appellee. The contempt judgment further provides that appellant may purge himself of the contempt at any time by paying the aforesaid amount.

The final judgment ordered that appellant pay monthly child support of $200; one-half of the mortgage payments, taxes and assessments on the marital home, and provide for the maintenance thereof; that he pay lump sum alimony in the amount of $2,070.79 over an 18 month period together with attorney's fee of $1,500 to be paid in 12 monthly installments. The final judgment was appealed to this court and affirmed (Faircloth v. Faircloth, Fla.App. (1st), 289 So.2d 799 (1974)). The evidence at the contempt hearing held 22 and one-half months after the entry of the final judgment showed that none of the lump sum alimony had been paid nor had appellant made any contribution toward the mortgage, taxes, assessments and maintenance of the marital home. In addition, he was $930 in arrears in child support payments and had paid nothing on the attorney's fee. Further, the evidence showed that in November, 1973, appellant conveyed his undivided one-half interest in the marital home to a third party, thereby putting that asset beyond reach for satisfying any of his obligations under the final judgment. The record here is silent as to any attempt by appellant to secure modification of the final judgment. He appears to have taken it upon himself not to obey it.

Appellant contends that the contempt involved here was a criminal contempt proceeding rather than civil contempt and that his constitutional rights were violated in that (1) he was not informed of the right of an indigent to be provided counsel, and (2) the court made no determination of indigency for the purpose of appointment of counsel. This contention is without merit. In Demetree v. State, Fla. 89 So.2d 498, the Supreme Court explained the difference between civil and criminal contempt as follows:

'In its broadest aspects a civil contempt order is sought by a party to the cause and entered by the court for the private benefit of the offended party. While imprisonment may be adjudged in a civil contempt proceeding, it is coercive rather than punitive in nature. Customarily when imprisonment is ordered for a civil contempt its continuance is made contingent upon compliance with the order of the court and when the contemnor has so complied he is released from prison. The sentence is usually therefore indefinite and not for a fixed term. It is for this reason that in civil contempt it has been said that the contemnor "carries the key of his prison in his own pocket." In re Nevitt, 8 Cir., 117 F. 448, 451, 461, 54 C.C.A. 662. He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.

'In a civil contempt proceeding an offended party to the cause is primarily seeking relief, personal and private to himself, as distinguished from punishment for conduct offensive to the public or disrespectful to the court and its authority. On the other hand, a contempt proceeding criminal in nature is instituted solely and simply to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court. Customarily when imprisonment is ordered it is generally for a fixed term and is administered as punishment for an act committed rather than as coercion to compel the contemnor to do something which he had theretofore failed and refused to do.'

See also State v. Anderson, Fla.App. (1st), 168 So.2d 554. In defining civil contempt, 17 C.J.S. Contempt § 6, states as follows:

'Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is, therefore, an offense against the party in whose behalf the violated order is made. If, however, the contempt consists in doing a forbidden act, injurious to the opposite party, the contempt may be considered criminal.'

It is obvious that a contempt commitment issued as the result of a party's failure to comply with the requirements of a final judgment of dissolution of marriage is a civil contempt rather than a criminal contempt (unless such failure consists in doing a forbidden act injurious to the opposite party in which event it may be a criminal contempt). The object of the contempt proceeding is primarily to secure compliance with the court's judgment or order for the benefit of the opposing party rather than solely to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court. While there may be some elements of punishment involved in a civil contempt, the primary purpose is to secure compliance with the court's order for the benefit of the opposing party. On the other hand, as stated by the Supreme Court in Demetree, supra, 'a contempt proceeding criminal in nature is instituted Solely and simply to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court.' (Emphasis supplied.) To summarize, the purpose of civil contempt may be a mixed purpose--to both secure compliance with the court's order for the benefit of the opposing party and to punish, but compliance is the primary purpose. Punishment may also be necessary in civil contempt in order to get the offender's attention and thereby obtain future compliance after release. The purpose of criminal contempt, on the other hand, is Solely to vindicate the authority of the court or otherwise punish for conduct offensive to the public in violation of an order of the court.

Appellant has cited no authority and we know of none requiring appointment of counsel for an indigent charged with civil contempt. We do not infer from this ruling that an indigent contemnor is or is not entitled to appointment of counsel on a criminal contempt charge. That issue is not present here.

Appellant next contends that a contempt commitment for failure to obey a court order must reveal on its face an affirmative finding that the contemnor had the ability to obey the order or that his inability was brought upon himself due to his own fault. He states that the court made no evidentiary finding regarding his ability to pay, ignored his assertions that he had no money or assets, and ignored his offer to bring in financial records. Appellee contends that once she established the arrearage, it then became appellant's burden to prove that he was unable to pay through circumstances beyond his control (citing Naster v. Naster, Fla., 163 So.2d 264); that appellant's bare assertions that he was unable to pay were insufficient; that while appellant offered to produce financial records, he did not bring any to the hearing and produced no evidence to substantiate his claims. We agree.

In a somewhat similar case Orr v. Orr, 14 Fla. 112, 192 So. 466 (1939), the Supreme Court said:

'The appellee offered some testimony tending to show that he is at present unable to pay the award. This is not a necessarily proper defense to the application for the citation. Inability to pay is a valid defense at the time the decree was rendered, Phelan v. Phelan, 12 Fla. 449; Haddon v. Haddon, 36 Fla. 413, 18 So. 779; Arendall v. Arendall, 61 Fla. 496, 54 So. 957, Ann.Cas. 1913A, 662; but where no appeal has been taken from the order, it will stand inviolate, . . .

'The burden of proving inability is on the defendant, and as the final decree is an adjudication of his ability to pay, the only available defense for nonperformance is a showing that he is unable to comply with the terms of the decree due to factors beyond his control. 17 Am.Jur. 510; 19 C.J. 304, and cases therein cited.

'This rule was properly stated in the case of Hembree v. Hembree, 208 Ky. 658, 271 S.W. 1100, text 1101, 'To have purged himself of contempt for his failure to comply with the court's orders he must have made it clearly appear, not only that he was unable to comply therewith, but also that his inability was not caused by his own neglect or misconduct.' This rule was reiterated in the later case of Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517.'

In the case sub judice, although the record may not show that appellant has the present ability to immediately pay the full amount of the arrearage, the final judgment, which was appealed and affirmed, stands inviolate that he had the ability to comply with its requirements at the time it was entered. In addition, he has made no evidentiary showing of a subsequent inability to comply with it nor has he shown that any inability which he may have had was not caused by his own neglect or misconduct. To the contrary, the record shows otherwise--that he disposed of his 1/2 interest in the marital home. In this connection the Supreme Court in Naster v. Naster, supra, said:

'. . . In a contempt proceeding when the failure to pay has been established the husband has the burden of proving that his failure has not been willful. In exercising his judicial discretion in the contempt proceeding the chancellor may take into consideration the husband's inability to pay, together with other elements such as his failure to apply to the Court for relief when the inability arises, as well as the fact that the husband has intentionally brought about his...