Luzenberg v. Forand, 2D05-686.

• Decision Date: 17 March 2006
• Docket Number: No. 2D05-686.,2D05-686.
• Citation: 929 So.2d 546
• Parties: Robert S. LUZENBERG, Appellant, v. Marlene S. FORAND, Appellee.
• Court: Florida District Court of Appeals

929 So.2d 546

Robert S. LUZENBERG, Appellant, v. Marlene S. FORAND, Appellee.

No. 2D05-686.

District Court of Appeal of Florida, Second District.

March 17, 2006.

Rehearing Denied June 2, 2006.

Stephen E. Walker and Gregory D. Jones of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.

Sean P. Cox and Raymond A. Haas of Haas, Dutton, Blackburn, Lewis & Longley, Tampa, for Appellee.

CASANUEVA, Judge.

In this postdissolution action, Robert S. Luzenberg appeals from an amended final judgment finding indirect criminal contempt. Mr. Luzenberg contends that this order was entered in violation of the procedures dictated by Florida Rule of Criminal Procedure 3.840 and in contravention of his constitutional rights to due process. We reverse.

In April 2003, the court entered a final judgment allegedly finding Mr. Luzenberg in indirect criminal contempt for consistently and willfully failing to comply with the terms of the final judgment and amended final judgment of dissolution, specifically by failing to pay Ms. Forand, the former wife, over $400,000 due to her under the judgments.¹ Among other things, the court found that Mr. Luzenberg had been given notice of his arraignment for indirect criminal contempt but failed to appear, that he had been found on multiple occasions to have the ability to pay, and that his pattern of conduct demonstrated intentional defiance of court obligations. In the final judgment of contempt, the trial court ordered Mr. Luzenberg to be incarcerated for a maximum of six months and directed the State Attorney to extradite Mr. Luzenberg from his Alabama home. A handwritten interlineation in the order provided also that Mr. Luzenberg could purge himself of incarceration by paying $402,000 to Ms. Forand.

By including a purge amount in the final judgment of contempt, the trial court essentially rendered an order of civil contempt rather than indirect criminal contempt. It later became apparent to Ms. Forand's attorneys that the State Attorney would not prosecute a civil judgment, so they returned to the court in January 2005 to have the final judgment amended. After holding a nonevidentiary hearing, the trial court struck the purge amount and the direction to the State Attorney to extradite Mr. Luzenberg from his Alabama residence and entered an amended final judgment finding indirect criminal contempt.

The court erred in "amending" the final judgment of contempt by changing its nature from a civil contempt to an indirect criminal contempt. The Fifth District addressed a similar issue, although in a slightly different procedural context, in Dolin v. Dolin, 654 So.2d 223 (Fla. 5th DCA 1995). In Dolin, the former wife had been held in indirect criminal contempt in an order affirmed by the Fifth District. While her appeal of that order was pending, the former husband "returned to the trial court and persuaded it to `correct' the order being appealed by changing it to an order holding [the former wife] in civil contempt rather than indirect criminal contempt." Id. at 224. The theory behind the "correction" or "ame...