CHARLES D. PHILLIPS, APPELLANT,
v.
KATHLEEN H. PHILLIPS, APPELLEE
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Charles Phillips appeals a contempt order for failure to pay spousal support. The court reverses the prospective commitment provision that would automatically jail Phillips upon the former wife's sworn affidavit of nonpayment, holding such an order violates due process.
The prospective provision allowing automatic commitment upon the filing of an affidavit violates due process because it fails to provide the contemnor with notice and an opportunity to be heard and defend against contempt charges before commitment.
[1] A contempt order that allows for future incarceration upon the mere filing of an affidavit of non-compliance, without providing the alleged contemnor an opportunity to be…
[2] Due process requires that a party accused of contempt be apprised of the nature of the contempt allegations and be given an opportunity to defend against them.
Previewing 2 of 3 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“A respondent can only be held in contempt upon a determination by the Court that his failure to comply with the Order of the Court is a willful failure and due process requires that he be apprised of the nature of his contempt and an opportunity to be heard and defend the allegations.”
Establishes the due process requirement that a contemnor must receive notice and a hearing opportunity before commitment for contempt.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe trial court found Phillips in contempt for failing to pay approximately $3,268.00 in support and sentenced him to thirty days in jail unless paid …
The full statement of facts, procedural history, and disposition for this case are member content.
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WALDEN, Judge.
The matter was before the trial court upon the former wife’s motion for contempt. The resulting order which is here now on appeal provided in material part:
[T]he Court does find that the Former Husband is hereby found to be in contempt for failure to pay approximately $3,268.00 in support. He is hereby sentenced to thirty days in the county jail if not paid, by a purge payment, by November 15 of 1985. Further, he will continue to keep current on all payments, including payment of his contribution to the mortgage, where the minor children reside.
In the event of his non-compliance, within five days of his future payments being due, a commitment order will issue upon filing, by the Former Wife, a sworn affidavit. [Emphasis supplied]
The husband appeals the emphasized portion of the above order. We reverse that portion.
This court considered a like issue in Strauser v. Strauser, 303 So. 2d 663 (Fla. 4th DCA 1974), and stated:
The Order of Contempt operates prospectively in that it orders the Appellant to make certain periodic payments and upon failure to make any one of said payments the Sheriff is ordered to commit the Appellant to the County jail for a period of fifteen days. A respondent can only be held in contempt upon a determination by the Court that his failure to comply with the Order of the Court is a willful failure and due process requires that he be apprised of the nature of his contempt and an opportunity to be heard and defend the allegations. The Order of Contempt in the instant ease violates due process requirements by failing to provide Appellant with an opportunity to be heard and to defend the charges against him.
Id. at 664.
See also Robbins v. Robbins, 429 So. 2d 424 (Fla. 3d DCA 1983), and Lang v. Lang, 404 So. 2d 190 (Fla. 4th DCA 1981).
We reverse and remand with instructions to strike that portion of the trial court’s order of November 6, 1985 (the portion above emphasized), which provided that a commitment order will issue in the future upon the filing of an affidavit by the former wife as to the former husband’s nonpayment.
REVERSED AND REMANDED.
GUNTHER and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Robbins v. Robbins, 429 So. 2d 424 (Fla. 3d DCA 1983)
- Strauser v. Strauser, 303 So. 2d 663 (Fla. 4th DCA 1974)
- Causeway Lumber Co., Inc. v. Associated Fla. Contractors, Inc., 404 So. 2d 190 (Fla. 4th DCA 1981)