Schminkey v. Schminkey
| Decision Date | 17 June 1981 |
| Docket Number | No. 80-1073,80-1073 |
| Citation | 400 So.2d 121 |
| Parties | Alfred T. SCHMINKEY, Appellant, v. Ellen O. SCHMINKEY, Appellee. |
| Court | Florida District Court of Appeals |
John D. DiChiara, of Digiulian, Spellacy & DiChara, Fort Lauderdale, for appellant.
No appearance for appellee.
Appellant/former-husband challenges an order finding him in contempt for failure to repay a bank loan, the repayment of which was unconnected with alimony. We reverse.
At the time of his divorce, appellant/husband entered into a stipulation to convey certain real property to his wife in lieu of alimony. The provision was accentuated by the following colloquy between counsel:
The final judgment of dissolution incorporated the above stipulation by reference and expressly stated that the realty was being transferred to the wife "in lieu of alimony."
The final judgment of dissolution further contained a provision that the husband make monthly loan repayments to the Century Bank of Broward County to satisfy a pre-existing obligation of both parties. The former husband failed to comply with this provision and the former wife instituted contempt proceedings which resulted in the order on appeal.
The stipulation of the parties and the final judgment of dissolution unequivocally establish that the requirement to repay the loan is not alimony. It is a decree to repay a debt due to a third party. As such, it may not be enforced through contempt proceedings since our constitution prohibits imprisonment for debt. 1 Article I, Section 11, Florida Constitution. Accord, State ex rel. Cahn v. Mason, 148 Fla. 263, 4 So.2d 255 (Fla.1941); State ex rel. Reno v. Richardson, 348 So.2d 62 (Fla. 1st DCA 1977); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974); State ex rel. Gillham v. Phillips, 193 So.2d 26 (Fla.2d DCA 1966). The order of contempt is quashed and the cause is reversed.
Although the cases cited are apropos especially Cahn v. Mason, supra, we cannot help but think that the result is totally out of step with the Supreme Court's recent holdings which in effect authorize a trial judge to make a property settlement agreement. Accordingly, deeming the matter to be of great public importance we certify to the Supreme Court of Florida the following question:
WHEN A PROVISION IN A FINAL JUDGMENT OF DISSOLUTION OBLIGATES A HUSBAND TO PAY A DEBT OWED TO A THIRD PARTY BY BOTH HUSBAND AND WIFE AND THE HUSBAND FAILS TO PAY, CAN HE BE HELD IN CONTEMPT?
LETTS, C. J., concurs specially with opinion.
Paragraph 3 of the Final Judgment sets forth a series of directions in lieu of alimony which were stipulated to in open court. There followed five more paragraphs, one of which read as follows:
4. The Respondent shall pay FOUR HUNDRED ($400.00)...
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...a debt).5 See Witter v. Witter, 443 So.2d 417 (Fla. 2d DCA 1984); Ball v. Ball, 440 So.2d 677 (Fla. 1st DCA 1983); Schminkey v. Schminkey, 400 So.2d 121 (Fla. 4th DCA 1981).6 Solomon v. Solomon, 149 Fla. 174, 5 So.2d 265 (Fla.1941); English v. Galbreath, 462 So.2d 876 (Fla. 2d DCA 1985); Sh......
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