State ex rel. Byrd v. Anderson

• Decision Date: 17 November 1964
• Docket Number: No. F-465,F-465
• Citation: 168 So.2d 554
• Parties: STATE of Florida ex rel. Marvin D. BYRD, Petitioner, v. Howard 'Andy' ANDERSON, Sheriff, Walton County, Florida, Respondent.
• Court: Florida District Court of Appeals

Page 554

168 So.2d 554

STATE of Florida ex rel. Marvin D. BYRD, Petitioner, v.Howard 'Andy' ANDERSON, Sheriff, Walton County, Florida, Respondent.

No. F-465.

District Court of Appeal of Florida, First District.

Nov. 17, 1964.

Adams & Palmer, Crestview, for petitioner .

Howard 'Andy' Anderson, in pro. per.

PER CURIAM.

Since entering our opinion and judgment on September 17, 1964, in this original habeas corpus proceeding, this court has received a communication from a distinguished member of one of our sisterdistrict courts of appeal expressing his concern that our said opinion, by failing to mention the rule recognized in Demetree v. State ex rel. March, 89 So.2d 498(Fla.App.,1956)andDykes v. Dykes, 104 So.2d 598(Fla.App.,App.1958), (that the contemnor in a case of civil contempt 'carries the key of his prison in his own pocket'), the bar and bench of this state might be confused with regard to this court's view of the applicability of the said rule.Now sharing the jurist's concern as to such confusion, and in the interest of the administration of justice, we withdraw and revise our opinion entered on September 17, 1964, by adding therein a discussion of the said rule, and in lieu of our said opinion enter the following as our revised opinion:

This is an original proceeding in habeas corpus in which the petitioner for the writ alleges that he is unlawfully held in custody under a contempt judgment and sentence entered by the Circuit Court for Walton County in an action for divorce.Upon the basis of the petition we issued a rule to show cause directed to the respondent, who duly filed his return, admitting the essential factual allegations of the petition, including the terms of the judgment and sentence under which he holds the petitioner in custody .

The question for our determination in this proceeding is the legality of the said sentence committing the petitioner to the county jail 'until such time' as he shall have paid certain past-due custody payments that had heretofore been ordered by the said court.

In the divorce suit that had been instituted by his wife in the said Circuit Court, the court entered orders requiring the petitioner to make payment for the support and maintenance of the parties' minor children.The petitioner failed to make certain of such payments, and the Circuit Court issued against him a rule to show cause why he should not be punished for contempt for his failure to comply with the said orders.

After the hearing on the rule to show cause the court entered the judgment in question, reciting that the petitioner, who was before the court, had shown no cause why he should not be punished for contempt and that he'has heretofore been adjudged in contempt for his failure to abide by the orders of this Court and punishment withheld' and that the petitioner was then in arrears in the sum of $407.10 on the said support payments.The court held the petitioner'in contempt of this Court' and further adjudged:

'That as punishment for his contempt the defendant is committed to the Sheriff of Walton County, Florida, to be held by him in the county jail of Walton County, Florida, until such time as the defendant has paid all support payments due and owing under the orders of this Court, together with the costs incident to the issuance of this rule and the hearing thereon, and shall have in addition thereto entered into a good and sufficient bond in the sum of $1,000.00, payable to the plaintiff, to be approved by the Sheriff of Walton County, Florida, conditioned to pay to the plaintiff for the support and maintenance of the minor children of the parties hereto the sum of $15.00 each week as required by the orders of this Court.'

In his verified petition for the writ of habeas corpusthe petitioner alleges that he cannot raise the said sum of money and cannot make the said bond, so that his sentence amounts to a perpetual sentence or a life sentence, although he was not convicted of a capital crime.

Fortunately for the petitioner's position, the appellate courts of Florida have uniformly held that the term of imprisonment for contempt of court must be definite and certain.For instance, in Satterfield v. Satterfield, 39 So.2d 72(Fla.App.,1949), a proceeding to review a decree in a divorce suit adjudging the husband in contempt for failing to pay alimony as required by the court, the Supreme Court of Florida said:

'Our adjudications are uniform in holding that a court has the power to punish for contempt a refusal to obey any legal order, mandate or decree of a court, but the term of imprisonment must be definite and certain.'

The rationale for this rule was expressed by our Supreme Court in its earlier decision in the case of Avery v. Sinclair, 153 Fla.App., 767, 15 So.2d 846(1943), as follows:

'The law is well settled in this state that where a contempt order is predicated on a finding of past noncompliance with a court order, and not on any present failure to comply therewith although able so to do, the order, being in its nature a punishment for what the contemnor has heretofore done, must specify a definite term of imprisonment.If the order condemns the offender to imprisonment for an indefinite and indeterminate period, or until he pays the past due alimony, or until the further order of the...