Gregory v. Rice, 92,471.

• Decision Date: 11 February 1999
• Docket Number: No. 92,471.,92,471.
• Parties: Anthony GREGORY, Petitioner, v. Everett RICE, Sheriff of Pinellas County, Florida, Respondent.
• Court: Florida Supreme Court

727 So.2d 251

Anthony GREGORY, Petitioner, v. Everett RICE, Sheriff of Pinellas County, Florida, Respondent.

No. 92,471.

Supreme Court of Florida.

February 11, 1999.

Bob Dillinger, Public Defender, and Keri Kepp, Assistant Public Defender, Sixth Judicial Circuit, Clearwater, Florida, for Petitioner.

Joseph R. Boyd and William H. Branch of Boyd, Lindsey, Williams & Branch, P.A., Tallahassee, Florida, and Chriss Walker, Department of Revenue, Office of Child Support Enforcement, Tallahassee, Florida, for Respondent.

OVERTON, Senior Justice.

This case involves the wrongful incarceration of a father who failed to pay child support payments. The father, Anthony Gregory, was sentenced to ninety days in jail with a $200 purge provision even though the unrefuted record in this proceeding reflects that he had no money and no assets other than the clothes he was wearing; that he had only recently been released from jail for this same offense; and that he had obtained employment just two days before the hearing. He was released from jail in this case only after this Court directed the State to file a response to his petition for a writ of habeas corpus. On the same date the Department of Revenue filed its response, it requested the trial court to release Gregory "in the interests of justice." In its response, the Department of Revenue moved to dismiss this cause as moot based on Gregory's release.

Originally, upon being notified that Gregory had been released, we dismissed this action as moot. On motion for rehearing, Gregory asserted that we should accept this case to address several issues raised in the petition because the issues are of great public importance, are commonly involved in these types of proceedings, and are very likely to recur.¹ Those issues concern the handling of contempt proceedings in matters presented to the court by Department of Revenue personnel and heard by child support enforcement hearing officers. We find we should accept jurisdiction. Accordingly, by this opinion we vacate our prior order dismissing this cause.

The relevant facts of this case are as follows. Gregory was incarcerated from August to October, 1997, for failure to pay child support. On the day before he was released, he was served with a notice of hearing for failure to pay child support. In January 1998, Gregory appeared as directed before Angela Hoogeven, a child support enforcement hearing officer, on a motion for contempt filed by the Department of Revenue. At the hearing, it was determined that Gregory owed $7,218 in child support arrearages. Gregory testified that he had just started working again (he had worked for only two days) and was expecting a paycheck of $55; he also testified that he had no cash or other assets other than his clothing. After this testimony was presented, the hearing officer found that Gregory "ha[d] been or was employed for six months," even though there was nothing in the record to support this finding, and found Gregory to be in contempt for failure to pay support. In the recommended order, the hearing officer sentenced Gregory to jail for ninety days with a $200 purge amount.

A portion of the transcript of the above proceedings is unavailable because the tape recording of part of the proceedings was misplaced. Nevertheless, it appears that Gregory was incarcerated without a proper determination that he had the present ability to purge. According to allegations in the petition, the routine process for handling cases of this type in Pinellas County is as follows: Four respondents are called before two hearing officers and are duly sworn; each is then addressed separately; after inquiry, those who are taken into custody are instructed to have a seat and wait for their court orders; the hearing officer's assistant then takes the order down the hall and obtains a judge's signature on the order; the assistant then returns with the executed orders; and the hearing officers formally adjudicate and sentence the respondents.²

In his petition, Gregory contends that the civil contempt proceeding that led to his incarceration was actually criminal in nature because (1) no proper finding was made that he had the ability to purge the contempt prior to his incarceration and (2) the trial court failed to properly review the recommendations of the hearing officer as required by Florida Family Law Rule 12.491.³ We recently adopted new Florida Family Law Rule 12.615 to specify the procedure that must be followed in civil contempt proceedings in family law cases. The law in this area has not changed recently; however, cases such as this one reflect that confusion still exists as to the process to be followed. As a result, we found it necessary to adopt a specific rule to provide detailed guidance in this area. In adopting the rule, we stated:

We have noted on numerous occasions that there are two distinct type of contempt proceedings: (1) criminal contempt proceedings, and (2) civil contempt proceedings. Bowen v. Bowen, 471 So.2d 1274 (Fla.1985); Pugliese v. Pugliese, 347 So.2d 418[422] (Fla.1977).

Criminal contempt is used to punish intentional violations of court orders or to vindicate the authority of the court, and "potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings." Bowen, 471 So.2d at 1277 (emphasis added). See also Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988)

.

On the other hand, the primary purpose of a civil contempt proceeding is to compel future compliance with a court order. International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). A civil contempt sanction is coercive in nature and is avoidable through obedience. Id. at 827.

In Bowen, we noted that a present ability to purge the contempt sanction is an essential prerequisite to incarceration for civil contempt. In Johnson v. Bednar, 573 So.2d 822 (Fla.1991), we further concluded that the necessity of a purge provision in imposing a civil contempt sanction is only required where incarceration is ordered. However, after we issued Bednar, the United States Supreme Court concluded that any coercive sanction ordered in a civil contempt proceeding must afford the contemnor an opportunity to purge; otherwise, the contempt is criminal in nature and requires that all of the constitutional due process requirements inherent in criminal cases be provided to the contemnor, including, in some cases, the right to counsel and to a jury trial. See Bagwell, 512 U.S. at 829

. Only if the fine is compensatory is it appropriate to dispense with a purge provision. Id. Thus, Bagwell effectively overruled our conclusion in Bednar that a purge provision is required only when incarceration is ordered.

In addition to discussing the distinct types of contempt, in Bowen we also set forth the procedures to be followed in civil contempt proceedings involving support in family law matters. First, an initial order directing that support or alimony be paid is entered. Because such an order is based on a finding that the alleged contemnor has the ability to pay, the initial order creates a presumption in subsequent proceedings that there is an ability to pay. Second, in a subsequent proceeding, the movant has the obligation to show that a prior order of support has been entered and that the alleged contemnor has failed to pay all or part of that support. The burden then shifts to the alleged contemnor, who must establish that he or she no longer has the ability to pay the support. The court must then evaluate the evidence and determine whether the alleged contemnor has the present ability to pay the support and has willfully refused to do so. If the court finds in the affirmative, then the court must determine the appropriate sanctions to obtain compliance. Under Bagwell, regardless of whether the sanction is incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license, or other type of sanction, the court must provide the contemnor with the ability to purge the contempt; that is, if the contemnor satisfies the underlying support obligation, the sanctions must be lifted.

If the court finds that the contemnor's conduct is serious enough to warrant punishment, then a criminal contempt proceeding is the appropriate remedy under which the contemnor is entitled to the appropriate due process protections available in criminal cases.

While these principles appear to be fairly straightforward, cases reflect that courts often fail to apply the principles properly.

In re Amendments to the Florida Family Law Rules of Procedure, 723 So.2d 208, 213, 23 Fla. L. Weekly S573, S576 (Fla.1998). As our decision in Amendments makes clear, the court must evaluate the evidence and determine whether the alleged contemnor (1) has the present ability to pay the support and (2) has willfully refused to do so.⁴ The problem at issue here, however, involves not only a proper determination as to whether the alleged contemnor has the present ability to pay but also the proper procedure to be followed when a hearing officer, rather than an article V⁵ judge, hears evidence and makes recommendations to the court regarding the disposition of child support enforcement proceedings.

Child support hearing officers are empowered to "issue process, administer oaths, require the production of documents, and conduct hearings for the purpose of taking evidence." Fla. Fam. L.R. 12.491(e). Among other things, a hearing officer is to "evaluate the evidence and promptly make a recommended order to the court. Such an order shall set forth findings of fact." Fla. Fam. L.R. 12.491(e)(4). After the court receives a recommended order, the court is to review the recommendation and is to enter an order promptly absent good cause to do...