State ex rel. Schwartz v. Lantz, 82-739

• Decision Date: 01 November 1983
• Docket Number: No. 82-739,82-739
• Citation: 440 So.2d 446
• Parties: STATE of Florida, ex rel., Alan R. SCHWARTZ, Joseph Nesbitt and Natalie Baskin, as Judges of the District Court of Appeal of Florida, Third District, Petitioners, v. Dick C.P. LANTZ, Judge of the Circuit Court of Florida, Eleventh Judicial Circuit, Respondent.
• Court: Florida District Court of Appeals

Page 446

440 So.2d 446

STATE of Florida, ex rel., Alan R. SCHWARTZ, Joseph Nesbitt

and Natalie Baskin, as Judges of the District

Court of Appeal of Florida, Third

District, Petitioners,

v.

Dick C.P. LANTZ, Judge of the Circuit Court of Florida,

Eleventh Judicial Circuit, Respondent.

No. 82-739.

District Court of Appeal of Florida,

Third District.

Nov. 1, 1983.

Robert A. Ginsburg, County Atty., and Roy Wood, Asst. County Atty., for respondent.

Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.

PER CURIAM.

This court issued a rule to show cause to Circuit Judge Dick C.P. Lantz to show why he should not be found in contempt for willfully violating its order staying proceedings in DuBois v. DuBois, 412 So.2d 23 (Fla. 3d DCA 1982).

The underlying facts are as follows: Judge Lantz was presiding over a domestic proceeding involving Robert DuBois and Gay DuBois. On February 22, 1982, the judge entered an order finding Mr. DuBois in contempt of court for failure to pay temporary support. Notice of appeal from the contempt order was filed with this court on March 2, 1982. Subsequently, the husband's motions for stay were denied in the trial court and he filed an emergency motion for stay pending review in this court. On March 5, 1982, we issued the stay order which commanded:

Following review of appellant's emergency motion for stay pending review, it is ordered that said motion is granted and the orders of the circuit court dated February 22, 1982 and March 5, 1982 are hereby stayed pending further order of this court. This cause is set for hearing on the emergency motion for stay, on Tuesday, March 9, 1982 at 10:30 o'clock A.M.

A decision was rendered March 23, 1982. In that opinion, we reversed the trial court contempt order because it did not contain the requisite finding of a willful failure to pay, notwithstanding a present ability to do so, as required by Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); DuBois v. DuBois, 412 So.2d 23 (Fla. 3d DCA 1982).

During the pendency of the appeal, Judge Lantz conducted a hearing at which time the wife sought to amend the order adjudicating the husband in contempt so that it would properly reflect the fact that he had a present financial ability to pay temporary support. The transcript of that hearing unequivocally demonstrates that Judge Lantz was made aware that our stay order was in effect. Despite this fact, on March 22, 1982, he entered an order amending his prior order of contempt so as to include the findings required by Faircloth. At the husband's request, we summarily quashed the amended order but nonetheless issued a rule to show cause why Judge Lantz should not be held in contempt of this court for the purpose of protecting the power of the court with respect to matters properly before it. Judge Lantz has filed a response asserting three defenses.

First, he argues that he should not be held in contempt because he did not intend to violate this court's stay order but rather his actions resulted at most, from confusion with regard to the effect of a stay. To support the fact that he lacked the requisite intent, Judge Lantz relies upon a statement that he made at the hearing that "I believe that this court has the power to do so and so rule."

In Ex parte Biggers, 85 Fla. 322, 95 So. 763, 769 (1923), the court stated:

If the charges duly made are admitted to be true, and they clearly constitute contempt whether so intended or not, appropriate punishment follows. If the matters charged and admitted to be true are ambiguous or do not clearly constitute contempt, and an intent to offend is duly denied under oath, a discharge from custody follows.

See also Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932). Thus, if the stay order which was violated was clear as to its effect and operation, proof of intent is unnecessary. Cf. Department of Health & Rehabilitative Services, Division of Mental Health, South Florida State Hospital v. State, 338 So.2d 220 (Fla. 4th DCA 1976) (where order violated was confusing and ambiguous in its operation, proof of contemptuous intent is required).

Judge Lantz relies on Waltham A. Condominium Ass'n v. Village Management, Inc., 330 So.2d 227 (Fla. 4th DCA 1976) to reflect the confusion surrounding this area of the law. That decision, while admitting a prior uncertainty, clarified the effect of a notice of appeal upon a court's order. ¹ In the absence of a stay, it concluded that:

[T]he trial court has full authority or jurisdiction to "proceed" while the appeal is pending, even as to the "subject matter" of the appeal, and short of final hearing and disposition on the merits such authority or jurisdiction is limited in one, and only one, very specific sense: the trial court may not alter, amend, rescind or act in such a way with respect to its previous ruling or order as will frustrate the exercise of the appellate court's jurisdiction or render moot its labors.

330 So.2d at 233. Where a stay has been entered, the court added, there was a further limitation upon the trial court's power: It could not enter an order tending to extend or enforce the order appealed. Since Waltham, every district court in this state has, at least once, vacated a trial court order because it altered a judgment on appeal. ² Bleemer v. Bleemer, 436 So.2d 273 (Fla. 3d DCA 1983); FMS Management Systems, Inc. v. IDS Mortgage Corp., 402 So.2d 474 (Fla. 4th DCA 1981); Owen v. Wilson, 399 So.2d 498 (Fla. 5th DCA 1981); Ponzoli v. Hawkesworth, 390 So.2d 784 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980); Alarm Systems of Florida, Inc. v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1980); Edward J. DeBartolo Corp. v. Dryvit Systems, Inc., 368 So.2d 85 (Fla. 2d DCA 1979); Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978), cert. denied, 376 So.2d 75 (Fla.1979); Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978); General Portland Land Development Co. v. Stevens, 356 So.2d 840 (Fla. 4th DCA 1978); State ex rel. American Home Insurance Co. v. Seay, 355 So.2d 822 (Fla. 4th DCA), cert. denied, 361 So.2d 835 (Fla.1978); Stack v. Okaloosa County, 347 So.2d 145 (Fla. 1st DCA 1977). ³

From these decisions then, we can reach no other conclusion but that our stay order unambiguously defined the parameters of the trial court's power with respect to its previously-entered order. It cannot be disputed that the effect of Judge Lantz' modification was to frustrate the exercise of our appellate court's jurisdiction. Since, by so doing, the Judge has violated an express, unambiguous order of this court, actual proof of intent is unnecessary because it may be inferred from his actions. See Ex parte Biggers, 11 Fla.Jur.2d Contempt § 17 (1979). Accordingly, Judge Lantz' reliance on his statement at the hearing to indicate his lack of intent, will not aid him under the present circumstances.

Next, Judge Lantz asserts that a judge may not be held in contempt on the basis of a judicial ruling made by him. The power to hold a judge in contempt was traced to its English source in In re Mattera, 34 N.J. 259, 168 A.2d 38, 45 (1961):

There can be no doubt that a judge of an inferior court may be attached for disobedience of a direct order of a superior court. State v. Hunt, 1 N.J.L. 287 (Sup.Ct.1795). Blackstone (Book IV, p. 284) states the principal instances usually punished by attachment included:

"1. Those committed by inferior judges and magistrates; by acting unjustly, oppressively or irregularly, in administering those portions of justice which are intrusted to their distribution: or by disobeying the king's writs issuing out of the superior courts, by proceeding in a cause after it is put a stop to or removed by writ of prohibition, certiorari, error, supersedeas (a command to stay or forbear doing that which ought not to be done), and the like. For, as the king's superior courts, and especially the court of king's bench, have a general superintendence over all inferior jurisdictions, any corrupt or iniquitous practices of subordinate judges are contempts of that superintending authority whose duty it is to keep them within the bounds of justice." (emphasis added)

See also In re Fite, 11 Ga.App. 665, 76 S.E. 397 (1912); McFarland v. State, 172 Neb. 251, 109 N.W.2d 397 (1961); In re Pagliughi, 39 N.J. 517, 189 A.2d 218 (1963); State ex rel. Walker v. Giardina, 294 S.E.2d 900 (W.Va.1982); 46 Am.Jur.2d Judges § 85 (1969); 17 C.J.S. Contempt § 35 (1963). Consequently, we reject Judge Lantz' contention that, because of his office, he is immune from our contempt powers.

Once these impediments to our holding the judge in contempt have been removed, the only defense available to him is the fact that our inherent contempt powers are to be exercised with care and circumspection. He relies on State v. Clemmons, 150 So.2d 231, 234 (Fla.1963) wherein the court stated:

The power to find a grand jury in contempt because of the contents of its report should be exercised with great caution and only in extreme cases. The rule is that the power to adjudge anyone in contempt is always to be exercised with care and circumspection. South Dade Farms v. Peters, Fla., 88 So.2d 891. Ordinarily, expunging the report from the court records should suffice to remedy the evil of an obnoxious and objectionable report.

From this, Judge Lantz argues that the supervisory power of the district courts of appeal is so complete as to render unnecessary the use of the contempt power against a judge of the lower court. While it is true that we vacated the erroneously-entered order, this only served to protect the interests of the parties. Contempt proceedings, by their very nature, are utilized to vindicate the power of the court. See Ex Parte Earman, 85 Fla. 297, 95 So. 755 (1923). As the court so aptly stated in Demetree v. State, 89 So.2d 498, 501 (Fla.1956):

[T]he power to punish for violation of a valid subsisting order of a court of competent jurisdiction necessarily inheres in...