CAROL ANN SHULL, APPELLANT,
v.
HARRY DEAN SHULL, JR., APPELLEE
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In this post-dissolution marriage case, the Florida District Court of Appeal affirmed most of the trial court's order but struck portions relating to judicial sale of memorabilia and a contempt finding against the wife, while directing an evidentiary hearing on the wife's failure to pay joint debts.
The court affirmed the order in part but reversed in part. The provision authorizing judicial sale of memorabilia was struck as unwarranted without a party request and opportunity to be heard. The contempt finding was struck because the order itself recognized the wife might not have control of the items, making contempt unwarranted under the civil contempt standard requiring present ability to comply. The directive to deliver items or account for them remained valid. An evidentiary hearing was required before any judgment on the joint debt issue.
[1] A court order mandating a judicial sale of property and taxing costs against a party is unwarranted without a party's request for such a sale and an opportunity to be hea…
[2] A finding of civil contempt is unwarranted when the order itself recognizes that the alleged contemnor may not have the present ability to comply with the court's directi…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There having been no request by any party for a judicial sale nor opportunity to be heard in that respect, that portion of the order was unwarranted.”
Establishes that procedural due process requires a party's request and hearing opportunity before ordering judicial sale.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThis was a post-dissolution of marriage proceeding involving division of property. The trial court issued an order addressing an inventory of politica…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We affirm the trial court’s order in this post-dissolution of marriage proceeding except as follows.
We strike the following portion of the order which relates to an inventory of political memorabilia items to be filed with the court: “Failure of any party to file same, then the Court shall appoint a certified public accountant to conduct said inventory for the Court and said costs will be taxed against the failing party. The Court will then proceed to a judicial sale of said items.” There having been no request by any party for a judicial sale nor opportunity to be heard in that respect, that portion of the order was unwarranted.
We also strike the portion of the order finding the wife in contempt for failure to deliver certain other items of personal property to the husband and providing for thirty days incarceration of the wife if she does not within ten days account to the husband under oath in writing for the loss or disappearance of those items. The apparent recognition in the order that she may be able to account for the whereabouts of the items as being not within her possession or control for delivery to the husband reflects that the contempt finding was unwarranted at that time. See Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985) (one who does not have the present ability to comply cannot be held in civil contempt). However, that portion of the order directing the wife within ten days to deliver said items or account for their loss or disappearance remains standing. Of course, any failure on the part of the wife to comply therewith could lead to a further contempt hearing.
Finally, we construe that portion of the order referring to the wife’s failure to pay her share of joint debts as requiring another evidentiary hearing before the entry of any judgment thereon.
Affirmed in part and reversed in part.
GRIMES, A.C.J., and LEHAN and HALL, JJ., concur.
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Citator
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)