GLORIA BREEDING, APPELLANT,
v.
TERRY BREEDING, APPELLEE
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In a family law contempt proceeding, the Florida Fourth District Court of Appeal reversed the trial court's finding of criminal contempt and its modification of custody as punishment, holding that criminal contempt requires proper procedures (arrest warrant upon non-appearance) and that custody changes cannot be imposed as pure punishment but must be based on changed circumstances.
The trial court erred in holding the former wife in criminal contempt when she failed to appear; instead, a warrant for her arrest should have been issued per proper criminal contempt procedures. Additionally, a change in primary physical custody cannot be imposed purely as punishment for contempt; any change in custody must be accompanied by a showing of changed circumstances.
[1] A party accused of criminal contempt is entitled to constitutional protections afforded in criminal trials.
[2] Failure to appear at a criminal contempt hearing, after receiving adequate notice, warrants the issuance of an arrest warrant rather than immediate contempt findings.
Previewing 2 of 4 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“Criminal contempt hearings are essentially mini criminal trials and the accused is entitled to all the available constitutional protections.”
Establishes that criminal contempt proceedings require full constitutional protections and proper procedures.
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Join FLexlaw to unlock all legal intelligenceGloria Breeding, the former wife, was ordered to provide the address and whereabouts of the children. She failed to appear at a March 20, 1987 hearing…
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LETTS, Judge.
We find error in only two of the trial court’s dispositions and conclusions in this troubling case. First of all, the former wife should not have been held in criminal contempt of court for failing to show up at the hearing which took place on March 20, 1987. Secondly, a change in primary physical residence cannot be imposed as punishment for contempt.
The former wife was given adequate notice of the March 20th hearing, held to determine why she had failed to obey the trial court’s order commanding her to provide the address and whereabouts of the children. Nonetheless, it was error to hold her in criminal contempt when she failed to appear. Criminal contempt hearings are essentially mini criminal trials and the accused is entitled to all the available constitutional protections. As the court held in Bradley v. State, 420 So. 2d 417 (Fla. 1st DCA 1982) the proper procedure to be followed, upon her failure to show, was to issue a warrant for her arrest and have her brought before the court.
The former wife should not regard this reversal as an exoneration of her behavior and we do not, by what we do now, intend any condonation of willful disobedience. After she appears in court and is heard from, we see no reason why the court cannot impose, if it is so inclined, the same sentence as before. At that time it can also revisit the question, if it is not moot, of requiring the former wife to pay for the children’s return flight from Ohio as per the order of March 16, 1987.
In addition, the most recent order changed the physical residential custody of the children from the former wife to the former husband “as punishment ... until further order of the court.” We voice no objection to a temporary alteration of residential custody while the former wife is in jail. After all, during the period that she is incarcerated she cannot care for the children. However, upon her release, a further hearing will have to be held on this issue, because the court cannot change residential custody purely as a method of punishment. There must be an accompanying change of circumstances. See Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA 1968); Agudo v. Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982); Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA 1987).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
ANSTEAD, J., and OWEN, WILLIAM C., JR., Associate Judge (Retired), concur.
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Citator
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Ginder v. Ginder, 536 So. 2d 1155 (Fla. 1st DCA 1988)…r Wife shall reside in Jacksonville, Duval County, Florida, or the Court will enter its order changing custody of the minor children to the father.” A “court cannot change residential custody purely as a method of punishment.” Breeding v. Breeding, 515 So. 2d 374, 375 (Fla. 4th DCA 1987). “Changing the custody of a child is not a device to be used to obtain compliance with other court orders.” [*1157] Crippen v. Crippen, 508 So. 2d 1339, 1340 (Fla. 4th DCA 1987) (quoting Agudo v. Agudo, 411 So. 2d 249, 251 n…
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De Mauro v. State, 632 So. 2d 727 (Fla. 3d DCA 1994)…. For a criminal contempt, however, the contempt adjudication may not be entered in absentia, with exceptions not applicable here. See Bradley v. State, 420 So. 2d 417, 418 (Fla. 1st DCA 1982); Fla.R.Crim.P. 3.180. As stated in Breeding v. Breeding, 515 So. 2d 374 (Fla. 4th DCA 1987): [*730] Nonetheless, it was error to hold her in criminal contempt when she failed to appear. Criminal contempt hearings are essentially mini criminal trials and the accused is entitled to all the available constitutional protect…
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Tessler v. Tessler, 539 So. 2d 522 (Fla. 4th DCA 1989)…t. denied, 366 So. 2d 879 (Fla.1979). Clearly, interference with court orders alone, in the absence of substantial evidence of impact on the child, is more appropriately remedied by use of contempt rather than modification. See Breeding v. Breeding, 515 So. 2d 374 (Fla. 4th DCA 1987); Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA 1987). See also Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA), cert. denied, 218 So. 2d 174 (Fla.1968). However, here there is sufficient testimony in the record, albeit disputed…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA 1968)
- Nury Agudo v. Marcelo Agudo, 411 So. 2d 249 (Fla. 3d DCA 1982)
- Crippen v. Crippen, 508 So. 2d 1339 (Fla. 4th DCA 1987)
- Perez v. Ford Motor Corp., 508 So. 2d 1339 (Fla. 3d DCA 1987)
- Alan v. Bradley, 420 So. 2d 417 (Fla. 1st DCA 1982)