Gazil v. Gazil

• Decision Date: 27 January 1977
• Docket Number: No. 47628,47628
• Citation: 343 So.2d 595
• Parties: Joseph GAZIL, Petitioner, v. Norma GAZIL, Respondent.
• Court: Florida Supreme Court

Page 595

343 So.2d 595

Joseph GAZIL, Petitioner, v. Norma GAZIL, Respondent.

No. 47628.

Supreme Court of Florida.

Jan. 27, 1977.

J. Ralph Mabie, Mabie & Donaldson, West Palm Beach, Charles W. Musgrove, Tallahassee, and William S. Turnbull and Arthur R. Louv, Young, Turnbull & Linscott, Orlando, for petitioner.

John A. Gentry, III, Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, and Edward F. O'Connor, O'Connor, Baylor, Callas & Elliott, Palm Beach, for respondent.

ADKINS, Justice.

By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District (Gazil v. Gazil, 313 So.2d 484, (opinion filed January 30, 1975)), which allegedly conflicts with a prior decision of this Court (Bronk v. Bronk, 46 Fla. 474, 35 So. 870 (1903)), on the same point of law. Article V, Section 3(b)(3), Florida Constitution.

In March 1974, a final judgment of dissolution of marriage was entered, and on April 1, 1974, petitioner timely filed a notice of appeal seeking to challenge various financial rulings in the final judgment.

Subsequently, in May and September 1974, after the notice of appeal was filed, the trial court entered supplemental orders awarding temporary alimony pending appeal and court costs and attorneys' fees to respondent. In November 1974 and January 1975, petitioner was adjudged by the trial judge to be in contempt for failure to pay costs, attorneys' fees and temporary alimony under the supplemental orders. Respondent filed a motion to dismiss the appeal on January 27, 1975, setting out these matters and suggesting that petitioner was a fugitive from justice. The cause was argued on the merits before the appellate court on January 28, 1975, at which time the court also heard argument on respondent's motion. The order of dismissal which petitioner now attacks was entered on January 30, 1975.

The Constitution of Florida creates the right to appeal. As said in Willey v. W. J. Hoggson Corporation, 89 Fla. 446, 105 So. 126 (1925):

'While the Constitution provides that 'the Supreme Court shall have appellate jurisdiction in all cases at law and in equity originating in circuit courts,' the statutes regulate the appellate processes and procedure and the stages in a cause at which and the time within which the appropriate appellate process and procedure may be utilized; but Such statutory regulations and the appellate procedure had under the regulations cannot legally be used to impair the right to invoke the appellate jurisdiction conferred upon the Supreme Court by the Constitution or to obstruct the powers of the court to make its appellate jurisdiction effective.' (Emphasis supplied.) At p. 128.

The question before the Court is whether an appeal can be dismissed for the appellant's disobedience of an order of the trial court.

In an Annotation, 49 A.L.R.2d 1425 (1956), the following appears:

'In contrast with the relative clarity of the law with respect to the permissibility of the dismissal of an appeal where the appellant has disobeyed an order of the appellate court, there is considerable judicial disagreement as to whether an appeal can be dismissed for the appellant's disobedience of an order of the trial court. . . . the reader will note that there are not only interjurisdiction conflicts, but also--in California, Florida, Illinois--apparent intrajurisdictional conflicts in the decisions.' At 1429.

'The question whether an appellate court may dismiss the appeal for the appellant's failure to obey a trial court's order has been before the Florida courts in two cases, the results in which are diametrically opposed.' At 1438.

The Florida cases referred to in the Annotation are Bronk v. Bronk, supra, and Palmer v. Palmer, 28 Fla. 295, 9 So. 657 (1891). The annotator points out that the opinion in Bronk, supra, contains no reference to Palmer, and the inconsistency is at least superficial.

In Bronk writs of Ne exeat and injunction were issued against a defendant who then escaped from custody and finally remained beyond the court's jurisdiction, so that the trial court was powerless to enforce the writs. The appellate court refused to hear an appeal on the question of granting the Ne exeat writ, saying:

'The appellant having, since he took this appeal, voluntarily placed himself in contempt of the orders of the court below, and having gone beyond the jurisdiction of this court, so that no order or decree it might make in the premises could be personally enforced against him, we are confronted with the question whether he has a right to a hearing on questions based on the injunction and ne exeat orders. Doubtless the general rule is that a party is not deprived of any strict legal right to be heard by placing himself in contempt of the court, especially if there be other means available by which the court may enforce its orders. . . . Governed by these views, we decline to entertain and hear the assignments of error of John P. Bronk numbered 1, 2, 3, 6 and 7.' (Emphasis supplied.) 35 So. 870, at 871.

The assignments of error referred to in the opinion related to the writ of Ne exeat. The Court did not refuse to entertain assignment of error number 4, relating to the granting of the temporary injunction, and assignment of error number 5, relating to an order on the pleadings. In other words, the Court held that the entire appeal should not be dismissed.

In Bronk, supra, the Court held that a party in contempt is not deprived of his right to be heard, if there are other means available to enforce the Court's order. Where one absconds from the jurisdiction, of course, there is no way for the Court to enforce its order, and an appeal could properly be dismissed. But even in Bronk the Court retained jurisdiction of the case so that other matters unrelated to the contempt could be considered.

In Morris v. Rabara, 145 So.2d 265 (Fla.2d DCA 1962), it appeared that the appellant had disobeyed an order of the trial court. The appellate court in granting relief said:

'The motion of the appellee will be granted, and an order will be entered that this appeal be dismissed unless it shall be made to appear to this court, on or before thirty (30) days from the date of the filing of this opinion, that the appellant has either purged himself of his contempt or is in the custody of the Sheriff of Palm Beach County.' At 267.

Durham v. Durham, 297 So.2d 857 (Fla.4th DCA 1974), involved a situation where the appellant had been adjudged in contempt for failure to comply with an order of the trial court. In...