S. L. T., In Interest of

• Decision Date: 16 November 1965
• Docket Number: No. 5070,5070
• Citation: 180 So.2d 374
• Parties: In the Interest of S. L. T., R. L. T., R. L. T.
• Court: Florida District Court of Appeals

Page 374

180 So.2d 374

In the Interest of S. L. T., R. L. T., R. L. T.

No. 5070.

District Court of Appeal of Florida, Second District.

Nov. 16, 1965.

Edwin J. Kennedy, Sarasota, for appellant .

No appearance for appellee.

SMITH, Judge.

Jack L. Turner appeals from an order of the juvenile court entered in the styled cause holding him in contempt for wilful failure to comply with a child support order.

A petition was filed in the juvenile court making allegations of dependency concerning appellant's three minor children. The petition disclosed that a circuit court in another county had previously entered a $35 weekly child support order in a prior divorce proceedings. The juvenile court adjudged the children dependent and entered an order directing appellant to pay to the court $35 weekly child support for disbursement to their mother, the former wife, and to keep the court advised of any changes in his address. About ten weeks later appellant ceased making payments, and moved to Nevada to avoid arrest and get a job. Appellant spent the next two years in Nevada, Arizona and Florida, alternately, working, seeking employment and seeking treatment or financial assistance for an ailment subsequently diagnosed as emphysema. He never notified the court of any change of address. He was arrested on a bench warrant issued by the court based upon the court's records of failure of payment and failure to notify of the change of address. At a hearing before the court Turner appeared with counsel and first moved to dismiss upon the grounds that the circuit court having jurisdiction of the children in a divorce case had not transferred jurisdiction to the juvenile court for enforcement proceedings and therefore exclusive jurisdiction of the matter rested in the circuit court.

In State ex rel. Hendricks v. Hunt, Fla.1954, 70 So.2d 301, the Supreme Court held that a circuit court order in a pending divorce suit, placing children in the custody of their mother, did not prevent a juvenile court from assuming jurisdiction, adjudicating the children dependent and placing them in the custody of third persons as wards of the state. In a subsequent case, State ex rel. Watson v. Rogers, Fla.1956, 86 So.2d 645, the Supreme Court held that an outstanding juvenile court order issued under similar circumstances, transferring custody from the mother to the father or grandfather, did not preclude the circuit court from issuing an order in supplementary proceedings authorizing the mother to have custody of the children one day each week. The Rogers opinion did not expressly overrule the Hunt decision or otherwise clearly indicate that an existing circuit court jurisdiction with respect to child custody and support is exclusive. ¹ We are of the view that the true import and real meaning of Hunt and Rogers cannot be obtained by dwelling upon isolated portions of either but when read as a whole in pari materia we conclude their meaning to be that a child, for whom custody and support provisions have been made in the circuit court in a divorce proceeding (referred to in Rogers as jurisdiction of the circuit court going to 'bread and butter and the spiritual') may thereafter be adjudged a dependent or delinquent child in a juvenile court. This jurisdiction of the juvenile court as stated in Rogers 'goes to criminality, delinquency, dependency or other form of parental neglect.' Custody and support of a child of parties in a divorce proceeding is adjudicated without any determination of a 'dependent child' or a 'delinquent child' as the words are defined in Ch. 39, Fla.Stats., F.S.A., establishing the jurisdiction of juvenile courts, whereas the juvenile courts derive their jurisdiction solely on the basis of an adjudication that the child is 'dependent or delinquent.' For this reason the causes of action are different and the jurisdiction is different. The juvenile court had jurisdiction to make an adjudication of dependency of the children of these divorced parents. The jurisdiction of the two courts may become overlapping in some aspects of the matter ² but we view any question of overlapping as raising only the ground of pendency of another action for the abatement of the subsequent overlapping part. Here the subsequent juvenile court dependency and support adjudication was not challenged by appeal and the assault is solely on the ground of lack of jurisdiction. Disobedience of an order issued without jurisdiction is not contempt. State ex rel. Everette v. Petteway, 1938, 131 Fla. 516, 179 So. 666. But a showing that an order disobeyed was merely erroneous is no defense. Seaboard Air Line Ry. Co. v. Tampa Southern Ry. Co., 1931, 101 Fla. 468, 134 So. 529.

Appellant's contention that the juvenile court is exercising equity powers in excess of its jurisdiction by attempting to adopt and enforce the circuit court support order cannot be sustained. ³ The jurisdiction of the juvenile court, created under the general law, did not depend upon or exist by reason of the circuit court support order. It arose and existed solely by reason of the dependent status of the children. ⁴ The order of the juvenile court determining dependency and directing Turner to make the support payments was not void for lack of jurisdiction.

Turner next contends that he was denied due process of law in the contempt proceedings. In order to determine that question we must further determine whether the proceedings were criminal contempt proceedings or civil contempt proceedings and either direct or indirect because the rules of due process of law are different.

A contempt proceeding is direct where the act constituting the contempt is committed in the immediate presence of the court. Direct contempt proceedings are summary and may be without pleading, formal charge or affidavit. Where an act is committed out of the presence of the court the proceeding to punish is for indirect (constructive) contempt. Such proceedings must ordinarily be instituted by accusation, pleading or affidavit setting forth the facts constituting the contempt. Formal pleading may become unnecessary if the person charged is given notice of the charge and a hearing. A court may on its own motion institute an indirect contempt proceeding. In an indirect contempt proceedings the accused is always entitled to a hearing and an opportunity to resist the charge through defense or explanation. ⁵

In determining whether contempt proceedings are civil or criminal, this characteristic is determined by the nature of the contempt involved without regard to the cause in which the contempt arose. Ordinarily the real character of the proceedings is to be determined by the dominant purpose or the relief sought. The character and purpose of the penalty usually distinguishes civil contempt from criminal contempt. Usually the proceedings are to be regarded as criminal when the purpose is primarily punishment and civil when the purpose is primarily compensatory or remedial. ⁶

Strictly speaking, criminal contempt proceedings are not criminal proceedings or prosecutions even though the act involved is also a crime. ⁷ In criminal contempt proceedings the dominant purpose is punitive in nature. Its purpose is to preserve the power and vindicate the authority and dignity of the court and to punish for disobedience of its orders. The government, the courts and the people are interested in its prosecution and the state is the real prosecutor. In general, save in respect of indictment and trial by jury, criminal contempt proceedings should be in accordance with the principles and rules applicable to criminal cases insofar as such procedure is consistent with the summary nature of contempt proceedings. The accused is to be afforded many of the protections provided in regular criminal cases including the presumption of innocence which continues until there is proof beyond a reasonable doubt. In criminal contempt proceedings the sentence is solely punishment. It may be fine, imprisonment, or both, and the terms and amounts must be definitely stated. No provision for purging is required. ⁸

The purpose of civil contempt proceedings is to preserve and enforce rights of private parties to suits and to compel obedience to orders and decrees made for benefit of such parties. These proceedings are generally remedial and civil in their nature. They are essentially a remedy for coercing a person to do the thing required where the disobeyed order may still be obeyed. In civil contempt proceedings the penalty is coercive rather than punitive. A punitive sentence may not be imposed and imprisonment to compel compliance is not available if the accused is unable to comply. Civil contempt proceedings should be instituted by the aggrieved party or those who succeed to their rights or someone who has an interest in the right to be protected. Due process of law requires that the party accused be advised of the charge and accorded opportunity to defend himself. In these proceedings there is no presumption of innocence and the burden of proof is upon the party bringing the charge to prove the facts charged by a preponderance of the evidence. Where a court order and its violation are established or admitted the burden is on the accused to show facts which would excuse his default. If the defense or excuse is that of inability to comply, the accused has the burden of proving by a preponderance of the evidence such inability. This is based upon the fact that the making of the order involved an implicit finding of ability to comply. Thus there must be an affirmative finding appearing on the commitment order that it is within the power of the accused to obey the order and, conversely, imprisonment is not available if the accused is unable to comply. It is for this reason often stated that the accused carries the keys of his prison in his pocket. In Florida it has been held that imprisonment for civil contempt must be for a fixed term and...