Kobayashi v. Kobayashi

• Citation: 777 So.2d 951
• Decision Date: 07 December 2000
• Docket Number: No. SC92811.,SC92811.
• Parties: Hiroaki KOBAYASHI, Petitioner, v. Hollis M. KOBAYASHI, Respondent.
• Court: United States State Supreme Court of Florida

777 So.2d 951

Hiroaki KOBAYASHI, Petitioner, v. Hollis M. KOBAYASHI, Respondent.

No. SC92811.

Supreme Court of Florida.

December 7, 2000.

Rehearing Denied January 29, 2001.

ORDER

Petitioner Hiroaki Kobayashi seeks, through a writ of mandamus, the reinstatement of his appeal in the Third District Court of Appeal. To be entitled to a writ of mandamus, the petitioner must show a clear legal right to the performance by the respondent of a particular duty. See Fasenmyer v. Wainwright, 230 So.2d 129 (Fla.1969)

. The petition does not make a sufficient showing that the district court failed to perform a particular duty imposed upon it by law. Accordingly, this Court has no jurisdiction to issue the writ, and the petition is hereby dismissed.

WELLS, C.J., and HARDING, LEWIS and QUINCE, JJ., concur. SHAW, J., dissents with an opinion, in which ANSTEAD, J., concurs.

PARIENTE, J., dissents with an opinion.

SHAW, J., dissenting.

The district court dismissed Kobayashi's appeal because he failed to pay $138,560 in support and fees ordered by the trial court. He contends that he is unable to pay and should not be penalized by having his appeal dismissed without first being given an opportunity to show that the trial court's finding to the contrary (i.e., that he is able to pay) is in error. The present order of this Court dismisses his petition.

1. Facts

Hollis M. ("wife") and Hiroaki ("husband" or "Kobayashi") Kobayashi were married in Japan in 1981. They have two children. The husband is a businessman who works in Japan; the wife works part-time as an office administrator in Miami. The wife petitioned for divorce in July 1996, and the husband did not respond. The circuit court in February 1997 entered a final judgment of dissolution designating the wife as primary residential parent and awarding her $4000 per month in child support, $8000 per month in permanent periodic alimony, and ownership of the marital home. The husband in June 1997 filed a motion to set aside the judgment, claiming that he was given inadequate notice of the dissolution proceeding because he was in Japan. The court denied the motion, ruling that the husband failed to exercise due diligence in filing his motion. The court noted that the husband knew of the final judgment immediately after its entry and had notice of all court proceedings and yet failed to file his motion until many months after entry of the judgment.

In an order issued January 2, 1998, the court: (1) found that the husband had the ability to pay his support obligations; (2) held the husband in contempt for failing to pay his support obligations; and (3) provided that if the husband did not pay the full amount he owed in support and fees, i.e., $138,560, within thirty days, he would be jailed for sixty days. The husband appealed both the contempt order and the order denying his motion to vacate the judgment of dissolution, asserting that there was insufficient evidence to show that he had the ability to pay $138,560. The wife moved to dismiss the appeal based on the husband's failure to obey the trial court's order to pay the full amount, and the district court ordered the husband to pay the full amount within twenty days or his appeal would be dismissed. The husband moved for reconsideration, pointing out that dismissal would preclude appellate review of the trial court's finding. The court denied the motion and summarily dismissed the appeal.

2. Mandamus

The present order of this Court holds that mandamus is not available as a means of redress for the husband. I disagree. Mandamus is an extraordinary common law remedy that may be used to enforce an established legal right by compelling an official to perform a ministerial duty required by law.¹ A duty is ministerial "only to the extent that the respondent has no discretion over the matter."² The writ cannot be used to compel an official to exercise his or her discretion in any particular manner.³ This rule concerning discretion applies only to that discretion which the law has vested in the official,⁴ and such discretion is not boundless but rather is circumscribed by the established law.⁵ Where an official exceeds the bounds of the law, mandamus will lie to redress the wrong:

When discretion is given by law, but is arbitrarily or clearly erroneously exercised or abused by the official action ... such official action is subject to judicial review on mandamus, and redress may be had on such writ, where no other adequate legal remedy exists.

State ex rel. Pinellas Kennel Club, Inc. v. State Racing Comm'n, 116 Fla. 143, 143, 156 So. 317, 318 (1934).⁶ Thus, while mandamus may not be used to dictate a particular result within a discretionary range, it may be used to compel an official to act within that range.

This Court has utilized mandamus vis-a-vis the district courts to compel the performance of various duties, including the following: To compel a district court to reinstate an appeal dismissed for lack of jurisdiction;⁷ to compel a district court to reinstate an appeal dismissed for nonjurisdictional reasons;⁸ to compel a district court to undertake specific action related to the dismissal of an appeal;⁹ to compel a district court to refrain from acting beyond scope of its jurisdiction;¹⁰ and to compel a district court to vacate a judgment rendered without jurisdiction.¹¹

3. Gazil v. Gazil

Although the right to appeal is guaranteed by the Florida Constitution,¹² this Court in Gazil v. Gazil, 343 So.2d 595 (Fla.1977), explained that an appellate court may dismiss an appeal where the appellant has disobeyed a trial court order. The reason for this rule is that a party who is acting in defiance of judicial authority cannot reasonably expect to avail himself or herself of the benefits of that authority. The husband in Gazil had been held in contempt for failing to pay his obligations under a judgment of dissolution of marriage, and the district court dismissed the appeal. This Court quashed the district court order, ruling that Gazil first must be given an opportunity to purge the contempt order:

[T]he rule in Florida is as follows: Where the appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal. However, where a dismissal is ordered it is mandatory that the disobedient appellant must be given a period of grace, prior to the effective date of the dismissal, in which to comply with the disobeyed order.

The order of the District Court of Appeal in the case sub judice conflicts with these decisions in that petitioner was not given an opportunity to purge himself so that he could be heard on the merits of the appeal.

If an appellant husband absconds, the situation would be quite different and there would be no need to allow a period of time within which he could purge himself and be heard on appeal. If the contempt is for nonpayment of money, he should be given an opportunity to purge himself so that he could be heard on the merits of the case.

Gazil, 343 So.2d at 597.

Gazil's ability to pay his obligations never was in issue; the trial court had made a finding that he was financially able to pay and he did not contest that finding. Although this Court did not address this matter in the majority opinion in Gazil, Justice Roberts referred to the issue in his specially concurring opinion:

In this case, it is noteworthy that the trial court faced the issue and made a finding of fact that the husband was able financially to pay the sums ordered and, in effect, that his failure to do so was in defiance of the trial court. For that reason, I concur with the decision in this case. We are not here concerned with the case where the husband is, after due diligence, unable to make the payments ordered because of his indigency. In such an event, to deny him his right to appeal would, in my opinion, be a deprivation of a constitutional right under both the Constitution of Florida and the Constitution of the United States.

Gazil, 343 So.2d at 597-98 (Roberts, J., concurring specially).

4. The Present Case

In the present case, the district court sought to comply with our holding in Gazil by giving Kobayashi twenty days in which to purge the contempt by paying the amount in issue. The court, however, left unresolved the very issue that Kobayashi sought to appeal and that formed the basis for the contempt, i.e., the trial court's finding of his ability to pay. The district court's order of March 13, 1998, stated in full:

Upon consideration of appellee's motion to dismiss the within appeal and the appellant's reply to the motion, it is ordered that the appellant Hiroaki Kobayashi pay within twenty (20) days of the date of this order the entire arrearage due and owing under the circuit court order entered January 2, 1998, or the within appeal will stand dismissed.

It is so ordered.

Kobayashi v. Kobayashi, No. 97-3245 (Fla. 3rd DCA Mar. 13, 1998) (unpublished order).

Unlike the situation in Gazil where ability to pay was not an issue, Kobayashi's ability to pay the arrearage was very much in dispute in the proceeding below; he claimed that he is financially unable to pay $138,560. Although the trial court in its contempt order specifically found that Kobayashi has the ability to pay,¹³ his appeal challenges the evidentiary support for that finding.

Nothing in the present record shows that the district court reviewed the trial court's finding of ability to pay prior to dismissing the appeal. The district court's order reads simply:

Upon consideration, appellant's motion for reconsideration of this Court's order of March 13, 1998, is hereby denied, and this non-final appeal from the Circuit Court for Dade County, Florida, is hereby dismissed.

Kobayashi v. Kobayashi, No. 97-3245 (Fla. 3rd DCA Apr. 12, 1998) (unpublished order). Rather than reviewing the evidentiary basis for the finding, the district court appears to have focused only on our holding...