De Mauro v. State
| Decision Date | 08 March 1994 |
| Docket Number | No. 93-1223,93-1223 |
| Citation | 632 So.2d 727 |
| Parties | 19 Fla. L. Weekly D557 Mary De MAURO, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mary De Mauro, in pro. per.
Robert A. Butterworth, Atty. Gen., and Daisy Y. Guell, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and COPE, JJ.
Mary De Mauro appeals an order of incarceration pursuant to an adjudication of contempt. We reverse.
Mary De Mauro was divorced from Robert De Mauro in Monroe County in 1991. Subsequently the trial court changed custody of the children from the former wife to the former husband. The former wife did not deliver the children to the former husband as required by the court's order.
The former husband filed a motion for contempt. The trial court entered an order requiring the former wife to show cause why she should not be held in contempt for failing to comply with the order changing custody.
October 6, 1992 was the return date for the order to show cause. The former wife failed to appear. The trial court entered an order holding the former wife in contempt and sentenced her to 30 days' incarceration. The order provided that the former wife could "purge her contempt at any time by immediately releasing the children to the [former husband]." The order further directed the defendant to report for incarceration on October 16, 1992, unless she released the children to the former husband prior to that time.
On December 20, 1992 the former wife was arrested in Broward County with the children. All were returned to Monroe County.
On December 21, 1992 the former wife moved to vacate the prior contempt order and the 30-day sentence contained therein, on the ground that the children had been turned over to the father. Since the purge provision had been complied with, albeit unwillingly, the former wife contended that she was entitled to be released from any further incarceration pursuant to that order. The trial court heard argument from the former wife's counsel and took a limited amount of evidence. The court then continued the matter and released the former wife pending further hearings.
After further proceedings not pertinent here, the trial court resumed proceedings on the motion to vacate on April 26, 1993. The trial court took the position that the former wife had been given only until October 16, 1992 to return the children to the husband. The court reasoned that since she had not returned the children by that date, she was not entitled to the benefit of the purge provision in the contempt order. Thus, in the trial court's view, the former wife remained subject to the requirement to be incarcerated for 30 days. The trial court ordered the former wife to be incarcerated forthwith, but set a further hearing to take place the next day, April 27. On April 27 the trial court suspended the remainder of the sentence. The former wife has appealed, contending that the trial court's April 26 incarceration order was entered in error.
In our view the former wife's position was correct. Incarceration should not have been imposed pursuant to the October 6, 1992 contempt order.
Florida law draws a sharp distinction between civil contempt and criminal contempt:
If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor's sentence upon purging himself of the contempt.... Consequently, it is said that the contemnor "carries the key to his cell in his own pocket." ...
On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the authority of the court or to punish otherwise for conduct offensive to the public in violation of an order of the court.
Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977) (citations omitted). Because the criminal contempt proceeding "is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings." Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985).
The October 6, 1992 contempt order did not specify whether it was an order for civil contempt, rather than criminal contempt. However, it is clear that the order must be classified as one of civil contempt. The order required the return of the children and stated that the former wife "may purge her contempt at any time by immediately releasing the children to the [former husband]." The term of incarceration was imposed in order to coerce compliance, and not as a punishment. Once the children had been returned to the father, the purge provision had been satisfied and no further incarceration could be imposed pursuant to the October 6 order.
Even if there were some ambiguity in the October 6 order--and we find that there is none--there would be an insuperable procedural obstacle to considering the order as one which authorizes punishment for indirect criminal contempt. As Pugliese and Bowen indicate, criminal contempt is a criminal proceeding, the procedural standards for which are considerably more exacting than those for civil contempt. For an indirect criminal...
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