Pompey v. Cochran

• Decision Date: 08 January 1997
• Docket Number: No. 93-3181,93-3181
• Citation: 685 So.2d 1007
• Parties: 22 Fla. L. Weekly D151 Charles POMPEY, Petitioner, v. Ron COCHRAN, Sheriff of Broward County, and Department of Health & Rehabilitative Services of the State of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 1007

685 So.2d 1007

22 Fla. L. Weekly D151

Charles POMPEY, Petitioner, v. Ron COCHRAN, Sheriff of Broward County, and Department of Health & Rehabilitative Services of the State of Florida, Respondents.

No. 93-3181.

District Court of Appeal of Florida Fourth District.

Jan. 8, 1997.

Sharon Kung and Walter H. Honaman of Lawyers Collaborative, P.A., Boca Raton, for petitioner.

Linda Jaffee of the Law Offices of Milena Christopher, P.A., Fort Lauderdale, for Respondent-Department of Health & Rehabilitative Services of the State of Florida.

No appearance for Respondent-Ron Cochran, Sheriff of Broward County.

EN BANC

PER CURIAM.

We review this case en banc to consider important issues relating to the incarceration of a former spouse or parent who has failed to pay alimony or child support after having been found in civil contempt. This has led us to modify or recede from a prior decision of this court. We grant Charles Pompey's petition for a writ of habeas corpus, finding that Pompey's incarceration was unlawful because there was no evidence at all to support the trial court's affirmative finding that the petitioner had the ability to pay a purge amount of $22,100.

This case arises from a 1986 final judgment ordering Pompey to pay $60 per week in child support pursuant to a stipulation he entered with the Department of Health & Rehabilitative Services of the State of Florida (HRS). Pompey failed to make a single payment for nearly seven years. Then, in early May 1993, HRS filed a motion seeking to hold him in contempt for nonpayment of child support. The motion for contempt and notice of hearing stated:

YOU ARE HEREBY NOTIFIED that Petitioners shall apply for an Order adjudging you to be in contempt of this Court's previous Order by failure to pay support ... as ordered. Petitioners will seek to hold you in contempt of Court for all arrears up to the date of the hearing.... You are required to attend this hearing or a writ of attachment may issue for your arrest.

.... [Motion also required production of income tax returns, W-2s, and financial affidavit]

FAILURE TO PRODUCE THE DOCUMENTS REQUESTED MAY LEAD THE COURT TO CONCLUDE THAT YOU HAVE FAILED TO REBUT THE PRESUMPTION THAT YOU HAVE THE ABILITY TO PAY YOUR SUPPORT OBLIGATIONS IN FULL. Register v. Pita, 546 So.2d 1162 (1st DCA 1989). THE BURDEN OF PROOF IS YOURS TO ESTABLISH YOUR INABILITY TO PAY.

The motion and notice were personally served on Pompey in Manatee County, where he resided. Pompey failed to attend the scheduled hearing before a hearing officer in Fort Lauderdale and has offered no excuse for his non-appearance.

After the contempt hearing, the hearing officer filled in the blanks of what appears to be a standard form for reporting the results of child support enforcement hearings. The officer found:

....

2. Respondent failed to comply with the previous orders and/or final judgment of this Court to pay child support and is in arrears of said payments in the sum of $ 22,100 as of 5/18/93.

3. Respondent was served on 5/7/93 with notice of this hearing.

a. x By his/her non appearance fails to rebut the presumption of his/her ability to comply with the terms of the Court's orders and/or final judgment.

....

4. Respondent has the present ability or assets to pay the purge amount set forth below.

B. The Hearing Officer recommends the Court enter an Order approving the following:

1. Respondent is in willful contempt of Court based upon his/her failure to comply with the Court's orders and/or final judgment even though he/she had the ability to do so and presently has the ability to comply.

2. The arrears are determined to be $ 22,100 as of 5/18/93 .

3. Respondent's contempt shall be punished as follows:

a. ___Respondent shall be incarcerated in the Broward County Jail for a period of 179 days commencing 6/10/93.

....

c. x In the event Respondent does not purge of said contempt as provided herein on or before 6/9/93 a Writ of Attachment/Writ of Arrest and Commitment shall issue without further notice to Respondent to be brought before the undersigned after being brought into custody.

4. Respondent shall be released from the above sentence by payment of a purge in the amount of $ 22,100 (including fees) anytime prior or during the sentence....

For reasons unknown to us, the trial court did not enter a contempt order until July 14, over six weeks after the hearing. The trial court's order simply adopted the hearing officer's report by ratifying and approving the hearing officer's recommendations in all aspects. When Pompey failed to comply with the contempt order, another trial judge issued an order of arrest and commitment on August 18. The order of arrest specified that Pompey was to remain incarcerated until either the $22,100 purge amount was paid or the 179 day sentence was served.

Nearly two months after his incarceration, Pompey filed a petition for habeas corpus alleging that his incarceration was illegal because the requirements of Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), were not met as petitioner did not have the ability to pay the purge amount set by the court. In responding, HRS noted that by failing to appear Pompey had waived any opportunity to be heard on the issue of his present ability to pay, thus running the very risk of the incarceration which was ordered. We ordered the trial court to hold a hearing on petitioner's ability to pay. As a result of the hearing, the purge amount was reduced to $212, the amount of Pompey's last unemployment check, and Pompey has since been released from custody. ¹ Because of the significance of the issues regarding the extent of our own jurisdiction on habeas corpus relief in civil contempt proceedings, and the proper interpretation of Bowen in the conduct of civil contempt proceedings, we address the issues even though Pompey is no longer incarcerated. See In Interest of M.C., 567 So.2d 1038 (Fla. 4th DCA 1990).

I.

Article I, section 13 of the Florida Constitution states: "The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay...." Under Article V, Section 4(b)(3), district courts of appeal may issue writs of habeas corpus returnable before the court or before any circuit judge within the territorial jurisdiction of the court. Thus, it is clear and undisputed that we have jurisdiction to entertain petitions for writs of habeas corpus.

Confinement contrary to constitutional principles of due process may be the subject of habeas corpus relief. See Ex parte Senior, 37 Fla. 1, 14-15, 19 So. 652, 653-54 (1896); Ex parte Earman, 85 Fla. 297, 315, 95 So. 755, 761 (1923); Vick v. Navarro, 567 So.2d 495 (Fla. 4th DCA 1990). "The writ [of habeas corpus] is venerated by all free and liberty loving people and recognized as a fundamental guaranty and protection of their right of liberty." Allison v. Baker, 152 Fla. 274, 275, 11 So.2d 578, 579 (1943).

As stated in Anglin v. Mayo, 88 So.2d 918 (Fla.1956) [The writ] is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.

Id. at 919-20. The court also noted in Sneed v. Mayo, 66 So.2d 865 (Fla.1953):

"Jurisdiction of the person and of the subject matter is not alone conclusive [and] the jurisdiction of the court to make or render the order or judgment" depends upon due observance of the constitutional rights of the accused. 25 Am.Jur., Habeas Corpus, sec. 27, p. 161. See also Palmer v. Ashe, [342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154].

Id. at 874. In our opinion, Bowen established constitutional criteria for incarceration for civil contempt, the violation of which can be addressed by petition for writ of habeas corpus. In his petition for writ of habeas corpus, Pompey alleged that his confinement was contrary to the requirements of Bowen in that the trial court ordered the incarceration of Pompey when Pompey lacked the ability to purge himself from the contempt.

This conclusion that habeas corpus is available to review incarceration which violates the requirements of Bowen is not a new pronouncement of the law. We ourselves have frequently reviewed the legality of incarcerative civil contempt orders by habeas. In Vick, we granted habeas relief to a civil contemnor where the order was not sufficient to support a finding of civil contempt and the record did not show that the contemnor had been given the constitutional protections required for a criminal contempt proceeding. In LeNeve v. Navarro, 565 So.2d 836, 837-38 (Fla. 4th DCA 1990), we granted habeas corpus relief, and discharged the petitioner where we reviewed the evidence presented in the contempt hearing and found that it failed to support the required Bowen finding that petitioner held the "keys to his cell." See also Cook v. Navarro, 611 So.2d 47 (Fla. 4th DCA 1992).

Other districts also review such orders by way of habeas. In Fennell v. Felton, 655 So.2d 1316 (Fla. 3d DCA 1995), the third district entertained a petition for writ of habeas corpus by a jailed civil contemnor who failed to pay his child support. The court reviewed the evidence and found that not only did the master not make a finding that petitioner had the present ability to purge himself of the contempt, but also the record would not support such a finding. In ordering his discharge from incarceration, the court stated:

In this case, the state...