JAMES P. DOWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fifth District Court of Appeal reversed a contempt order against a defendant for failure to pay child support, holding that the order improperly mixed criminal and civil contempt concepts and failed to comply with legal requirements for each type of contempt proceeding.
The court held that the order was invalid because it improperly mixed criminal and civil contempt concepts and remedies in a single proceeding, failed to include required purge provisions for civil contempt, lacked findings regarding the defendant's power to comply, and improperly awarded attorney's fees for prosecution of criminal contempt charges.
[1] An award of attorney's fees for the prosecution of criminal contempt charges is improper and without authority.
[2] Requiring a party to convey an interest in real property as payment for delinquent child support improperly circumvents legal procedures for reducing arrearages to a mone…
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Join FLexlaw to unlock all legal intelligence“The requirement of a purge provision as an adjunct to civil contempt coercion cannot be avoided by making the desired action a condition of probation as to a criminal contempt charge.”
Establishes that courts cannot circumvent civil contempt requirements by characterizing civil remedies as conditions of criminal probation
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Join FLexlaw to unlock all legal intelligenceThe defendant-husband was charged with indirect criminal contempt for failing to obey a prior order to pay child support. The trial court issued a sin…
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PER CURIAM.
We reverse the appealed order in this case because it confuses in one. order concepts of criminal and civil contempt and fails to conform to legal requirements relating to each concept.
In the context of a civil domestic case the appealed order, entitled order “On Hearing to Show Cause for Indirect Criminal Contempt”, adjudicates the defendant-husband-father in indirect criminal contempt for failure to obey a prior order to pay child support, places the defendant on probation and, apparently as conditions of that probation, requires the defendant to pay 50% of his entire income to his former wife as and for child support. Apparently as further conditions of that probation, the order directs the defendant to either (1) convey to his ex-wife the defendant’s interest in the prior marital home in exchange for child support arrearages, or (2) in the alternative, to pay a certain sum of money for child support arrearages and pay $500 to the attorney prosecuting the indirect criminal contempt charges and to pay certain attorney’s fees previously awarded the same attorney for legal services to the ex-wife.
First, the award of attorney’s fees for prosecution of criminal contempt charges improperly skews the decision making process and is without authority. Routh v. Routh, 565 So. 2d 709 (Fla. 5th DCA 1990).
Second, the requirement that the defendant convey his interest in the prior marital home as payment of delinquent child support improperly attempts to circumvent the legal procedure of reducing the child support arrearages to a money judgment and levying execution on the judgment and otherwise improperly coerces the defendant to waive legal rights.
Third, those aspects of the order which attempt to force the defendant to comply with prior adjudication beneficial to the ex-wife and children are in the nature of civil contempt remedies and must contain purge provisions. Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla.1956); Seaboard Air Line R. Co. v. Tampa Southern R. Co., 101 Fla. 468, 134 So. 529 (1931); Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990); Allman v. Johnson, 488 So. 2d 884 (Fla. 5th DCA 1986); Carter v. State, 409 So. 2d 127 (Fla. 5th DCA 1982); Coody v. Muszynski, 402 So. 2d 81 (Fla. 5th DCA 1981). The requirement of a purge provision as an adjunct to civil contempt coercion cannot be avoided by making the desired action a condition of probation as to a criminal contempt charge.
Fourth, the order makes no finding as to the defendant’s power to comply with the order, or alternatively, as to the criminal contempt, that the husband previously had the power to comply but intentionally divested himself of that ability through his fault or neglect with the design to thwart and frustrate the court order. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Broyles, 573 So. 2d at 357. Fifth is the mixture in the order of civil and criminal procedures and remedies. The purpose of criminal contempt is to vindicate the authority of the court and to punish and deter conduct which intentionally and unlawfully assails, disparages, discredits, or disregards the authority of the court. Criminal contempt proceedings are subject to court rules in criminal cases and constitutional limitations applicable to criminal cases including the due process requirement of a burden of proof “beyond a reasonable doubt.” Civil contempt on the other hand, requires a lower standard of proof and is a special remedy of an equity court to coerce obedience to its orders which direct a civil litigant to do or abstain from doing an act or acts which the equity court has adjudicated that some other litigant is equitably entitled to have done or not done. While a particular proceeding may comply with all legal prerequisites for both civil and criminal contempt the two separate concepts should not be mixed as they may result in the confusion found in the instant order. Cf. Contella v. Contella, 557 So. 2d 880 (Fla. 5th DCA 1990); see also Carter, 409 So. 2d at 127, and 11 Fla. Jur.2d, Contempt, § 3 (1979).
The order in the instant case is vague and indefinite and fails to meet requirements relating to each type of contempt. The appealed order is reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
COWART and DIAMANTIS, JJ., concur. GRIFFIN, J., concurs in result only.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dep't OF Child. & Families v. R.H., 819 So. 2d 858 (Fla. 5th DCA 2002)…, a preponderance of the evidence will suffice, while in the former, the conduct must be provable beyond .a reasonable doubt.”) (citing Mrha v. Circuit Court, Felony Div., Broward County, 537 So. 2d 182 (Fla. 4th DCA 1989)); see also Dowis v. State, 578 So. 2d 860 (Fla. 5th DCA 1991). . State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735, 735 (1936) (holding that a civil contempt order "must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such f…
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Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992)…party was aware of that rule’s application. Also, an award of attorney’s fees for another party or a court’s wasted time in a criminal contempt proceeding is improper. See State v. Shelton, 584 So. 2d 1118 (Fla. [*97] 5th DCA 1991); Dowis v. State, 578 So. 2d 860 (Fla. 5th DCA 1991); Routh v. Routh, 565 So. 2d 709 (Fla. 5th DCA 1990). Finally, in Lowe, supra, the court stated that generally, the mere failure of an attorney to timely appear for trial will not support a criminal contempt proceeding, except in…
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Parsons v. Wennet, 625 So. 2d 945 (Fla. 4th DCA 1993)…a crime under Florida law and classified as conduct against the dignity and authority of the court. Such proceedings are punitive in nature. Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1985); Aaron v. State, 284 So. 2d 673 (Fla.1973); Dowis v. State, 578 So. 2d 860, 862 (Fla. 5th DCA 1991); In the Interest of S.L.T., 180 So. 2d 374 (Fla. 2d DCA 1965). On the other hand, the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen. C…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Seaboard Air Line Ry. Co. v. Tampa S. R.R. Co., 101 Fla. 468 (Fla. 1931)
- Demetree v. State of Fla. ex rel. John D. Marsh, 89 So. 2d 498 (Fla. 1956)
- Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990)
- Allman v. Johnson, 488 So. 2d 884 (Fla. 5th DCA 1986)
- Routh v. Routh, 565 So. 2d 709 (Fla. 5th DCA 1990)
- State ex rel Franklin C. Coody v. The Honorable Bernard Muszynski, 402 So. 2d 81 (Fla. 5th DCA 1981)
- Molina v. State, 557 So. 2d 880 (Fla. 3d DCA 1989)
- Harrison v. State, 409 So. 2d 127 (Fla. 5th DCA 1982)
- Carter v. State, 409 So. 2d 127 (Fla. 5th DCA 1982)