SHERMAN L. LUBIN, APPELLANT,
v.
DAVID B. SCHUMER, APPELLEE
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Sherman Lubin appeals a contempt order requiring him to return jewelry and reimburse medical expenses or serve thirty days in jail. The court affirmed the finding that Lubin violated a non-harassment provision but reversed the jewelry and reimbursement portions due to lack of specificity in the judgment and failure to find present ability to pay.
The court affirmed the contempt finding regarding violation of the non-harassment provision but reversed the portions of the contempt order concerning return of jewelry and medical reimbursement. The jewelry provision was reversed because the final judgment failed to specify which items must be returned, and the reimbursement provision was reversed because the trial court failed to find that Lubin had the present ability to pay.
[1] A party cannot be held in contempt for violating a court order that is not clear and definite, such that the party is unaware of its command and direction.
[2] A contempt order is defective if it requires reimbursement for medical expenses without a finding that the contemnor has the present ability to pay.
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Join FLexlaw to unlock all legal intelligence“a party should not be held to be in contempt for violation of ... [a] provision of a judgment, which is not clear and definite, so as to make the party aware of its command and direction, as applied to a given circumstance”
Establishes that contempt requires a clear and definite judgment provision; the jewelry provision failed this test.
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Join FLexlaw to unlock all legal intelligenceLubin was subject to a final judgment in favor of Schumer that included provisions requiring him to return certain jewelry and reimburse medical expen…
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PER CURIAM.
Sherman Lubin appeals an order adjudging him in contempt of court for failing to comply with two provisions of a final judgment. The contempt order provides that Lubin shall serve thirty days in jail if he fails to return certain jewelry to David Schumer and to reimburse him for medical expenses within thirty days.
We affirm the trial court’s finding that Lubin violated the non-harassment provision of the final judgment, Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979); however, we reverse the remaining portions of the order for two reasons. First, the contempt order purports to enforce a final judgment that does not inform Lubin with specificity which items of jewelry he was directed to return to Schumer. Because “a party should not be held to be in contempt for violation of ... [a] provision of a judgment, which is not clear and definite, so as to make the party aware of its command and direction, as applied to a given circumstance ...,” Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d DCA 1975), that portion of the order must be reversed. E.g., Miranda v. Miranda, 566 So. 2d 16 (Fla. 4th DCA 1990); Warnhoff v. Warnhoff, 474 So. 2d 1224 (Fla. 4th DCA 1985); Seaboard Systems Railroad, Inc. v. Clemente, 467 So. 2d 348, 358 (Fla. 3d DCA 1985); Loury v. Loury, 431 So. 2d 701 (Fla. 2d DCA 1983); Lawrence v. Lawrence, 384 So. 2d 279 (Fla. 4th DCA 1980).
Second, the trial court ordered Lubin to serve thirty days in jail if he failed to reimburse Schumer for medical expenses, without finding that Lubin has the present ability to pay. The trial court’s failure to make that finding renders the remaining provision of the order defective.1 See Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1985); Mauldin v. Roman, 588 So. 2d 667 (Fla. 5th DCA 1991); Pradas v. Prados, 561 So. 2d 6 (Fla. 3d DCA 1990); Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990).
Accordingly, we affirm the order of contempt in part and reverse in part. Remanded for further proceedings.
. Although it is unnecessary to reach this issue, we note that the trial court erred in failing to provide for an additional hearing prior to the entry of an order of commitment. Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962); see Thompson v. Thompson, 576 So. 2d 436 (Fla. 4th DCA 1991).
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Citator
Cited By
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Holderman v. Lobrano, 617 So. 2d 874 (Fla. 1st DCA 1993)…ioner had the ability to produce any additional documents and, thereby, to comply with the trial court’s earlier order. See e.g., Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992); Lubin v. Schumer, 593 So. 2d 599 (Fla. 3d DCA 1992); and Grapin & Chaykin, M.D., P.A. v. Turnoff & Fox, M.D., P.A., 413 So. 2d 133 (Fla. 3d DCA 1982). The trial court further erred in ordering payment of $300 in previously ordered attorney fees. The record discloses that the previo…
Authorities Cited (14 total)
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Lawrence v. Lawrence, 384 So. 2d 279 (Fla. 4th DCA 1980)
- Rosalind Kranis v. Kranis, 313 So. 2d 135 (Fla. 3d DCA 1975)
- Seaboard Sys. R.R., Inc. v. Anthony J. Clemente as Dir. of the Dep't of Env't Res. Mgmt., 467 So. 2d 348 (Fla. 3d DCA 1985)
- Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990)
- Loury v. Loury, 431 So. 2d 701 (Fla. 2d DCA 1983)
- Ottis Tal Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962)
- Miranda v. Miranda, 566 So. 2d 16 (Fla. 4th DCA 1990)