FRANK HAMMOND, PETITIONER,
v.
JACK SANDSTROM, DIRECTOR, DADE COUNTY JAIL, RESPONDENT
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Hammond petitioned for habeas corpus challenging his 60-day jail commitment for civil contempt of failing to pay child support. The Florida District Court of Appeal granted the petition and ordered his discharge, finding the commitment order defective because it lacked required findings that the contemnor willfully divested himself of ability to pay and failed to provide a purge clause.
The commitment order was void because it failed to contain two indispensable elements: (1) a finding that Hammond's loss of ability to pay was through his fault or neglect designed to frustrate the judgment, or that he presently has ability to pay but willfully refuses; and (2) a provision allowing Hammond to purge himself of contempt by making the required payments.
[1] A party may be held in willful contempt of court and imprisoned for non-payment of a money judgment only upon an affirmative finding that the party presently has the abil…
[2] A contempt order for failure to pay child support must include an affirmative finding of the ability to comply or the willful divestment of that ability.
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Join FLexlaw to unlock all legal intelligence“Although the order holding the petitioner in contempt adopted a finding by the general master that Hammond had previously been able to comply with the judgment, but had divested himself of the ability to do so, it did not make the further, and indispensable, finding that the divestment had taken place "through his fault or neglect designed to frustrate the intent and purpose of the order."”
Establishes the first critical defect: absence of required findings regarding willful divestment of ability to pay.
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Join FLexlaw to unlock all legal intelligenceHammond was found guilty of civil contempt for failure to make child support payments required by a dissolution judgment. A general master found that …
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SCHWARTZ, Judge.
Hammond has brought this petition for writ of habeas corpus, seeking release from his confinement upon a Circuit Court order committing him to the Dade County jail for 60 days, after he had, in an earlier order, been found guilty of contempt for failure to make child support payments required by the final judgment of dissolution, grant the petition. We
In our view, the papers upon which the petitioner was sent to jail do not support his incarceration in at least two particulars:
(1) Although the order holding the petitioner in contempt adopted a finding by the general master that Hammond had previously been able to comply with the judgment, but had divested himself of the ability to do so, it did not make the further, and indispensable, finding that the divestment had taken place “through his fault or neglect designed to frustrate the intent and purpose of the order.” Faircloth v. Faircloth, 339 So. 2d 650, 651 (Fla.1976). Since there was neither such a determination nor one that the alleged contemnor presently has the ability to pay but willfully refuses to do so, the imprisonment for contempt may not be sustained.1 Faircloth v. Faircloth, supra; State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936); Murphy v. Murphy, 370 So. 2d 403, 409 (Fla. 3d DCA 1979); Adams v. Adams, 357 So. 2d 264 (Fla. 3d DCA 1978).
(2) While the order of contempt provided that Hammond could purge himself by making his child-support payments,2 the order of commitment did not. It is well-settled that
“It is necessary that an order imprisoning for civil contempt provide that the contemnor may purge himself by the performance of the act ordered. In Re S. L. T., Fla.App.1965, 180 So. 2d 374.” [e. s.]
Spencer v. Spencer, 311 So. 2d 822, 824 (Fla. 3d DCA 1975). In order for the contemnor truly to “carry the key to his prison in his own pocket,” see Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla.1956), it is required that the order which authorizes his imprisonment, in this case, the order of commitment, itself show the means by which that key can be utilized. It is hardly appropriate to compel his jailer to investigate the contents of prior orders in the case in order to determine that the prisoner, by having purged himself of contempt, has become entitled to release.
Since each of these defects renders the proceedings below void on their face and thus subject to review by habeas corpus, see State ex rel. Trezevant v. McLeod, supra; Demetree v. State ex rel. Marsh, supra; State ex rel. Pipia v. Buchanan, 168 So. 2d 783 (Fla. 3d DCA 1964); State ex rel. Byrd v. Anderson, 168 So. 2d 554 (Fla. 1st DCA 1964); 15 Fla.Jur. Habeas Corpus § 71 (1957); the petition is granted and the petitioner ordered discharged forthwith.3
Petition for habeas corpus granted.4
. Since the requisite findings do not appear in any order of the court, we need not directly decide in this case whether it is indispensable that such findings separately appear on the face of an order of commitment, in addition to the order of contempt. It is obvious, however, that this is the preferable practice. See State ex rel. Trezevant v. McLeod, supra; Adams v. Adams, supra.
. Even this order was in part erroneous since it improperly conditioned the contemnor’s ability to purge himself upon his making future support payments (as well as those past-due ones for the non-payment of which he was held in contempt). See Roberts v. Roberts, 328 So. 2d 461 (Fla. 4th DCA 1976); Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962).
. This relief is of course granted without prejudice to any further and appropriate proceedings in the Dade County Circuit Court. Avery v. Sinclair, 153 Fla. 767, 15 So. 2d 846 (1943); State ex rel. Trezevant v. McLeod, supra, at 170 So. 734.
. The court expresses its appreciation to the firm of Sinclair, Louis, Siegel and Heath which, at our request, appeared as amicus curiae and ably presented argument on behalf of the petitioner.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980)…(Fla. 3d DCA 1979); and (b) because neither order contains, and the record of course does not justify, the determination required by Faircloth v. Fair-cloth, 339 So. 2d 650 (Fla.1976) to support a finding of contempt. See also Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979), and cases cited. Cases 79-2000 and 79-2001 are appeals by Mrs. Blum from two other orders which purported to modify the final judgment to her disadvantage. Since the trial court proceeded, without our consent, while the appeal f…
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Rubin v. Rubin, 418 So. 2d 1065 (Fla. 3d DCA 1982)…enied, 383 So. 2d 1199 (Fla.1980); Adams v. Adams, 357 So. 2d 264 (Fla. 3d DCA 1978), a finding supported by the evidence, and provides that appellant may purge himself of the contempt by payment of his outstanding obligations. Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979). Nor do we find any abuse of discretion in the trial court’s denial of appellant’s petition for modification of the final judgment on the basis that there is no credible evidence that circumstances had substantially changed to j…
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Fay William Small v. Small, 422 So. 2d 1054 (Fla. 4th DCA 1982)…nding was made based on testimony, approved by the Circuit Judge, and sufficiently memorialized in the official records. As to the second aspect, that being the failure to provide purging provisions in the order of commitment, Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979), provides the correct rationale for requiring such provisions: In order for the contemnor truly to “carry the key to his prison in his own pocket,” see Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla.1956), it is required tha…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (13 total)
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- Demetree v. State of Fla. ex rel. John D. Marsh, 89 So. 2d 498 (Fla. 1956)
- In the Interest of S. L. T., 180 So. 2d 374 (Fla. 2d DCA 1965)
- State v. McLeod, 126 Fla. 229 (Fla. 1936)
- Murphy v. Murphy, 370 So. 2d 403 (Fla. 3d DCA 1979)
- State of Fla. ex rel. Marvin D. Byrd v. Howard "Andy" Anderson, 168 So. 2d 554 (Fla. 1st DCA 1964)
- Ottis Tal Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962)
- State of Fla. ex rel. Salvatore C. Pipia v. Buchanan, 168 So. 2d 783 (Fla. 3d DCA 1964)
- Spencer v. Spencer, 311 So. 2d 822 (Fla. 3d DCA 1975)
- Adams v. Adams, 357 So. 2d 264 (Fla. 3d DCA 1978)