THOMAS A. MERTENS, APPELLANT,
v.
LINDA R. MERTENS, APPELLEE
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The court affirmed a contempt finding against a former husband for violating a temporary support order but remanded because the incarceration provision lacked required due process protections, specifically a hearing before imprisonment could commence.
A contempt order for willful violation of a support obligation may impose deferred incarceration only if it provides for a hearing on the obligor's ability to purge the contempt before any imprisonment begins.
[1] A contempt order imposing deferred incarceration for violation of a support obligation must provide for a hearing on the obligor's ability to purge the contempt before an…
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Join FLexlaw to unlock all legal intelligence“the former husband is subject to incarceration without a prior hearing on his ability to purge himself of the contempt”
The court identified the constitutional defect in the contempt order.
A former husband violated an earlier order for temporary support. The trial court found him in contempt and ordered him to surrender for incarceration…
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PER CURIAM.
A former husband appeals an order finding him in contempt for willfully and deliberately violating an earlier order for temporary support. The contempt order gave the former husband the opportunity to purge himself of the contempt, but ordered that he was otherwise to surrender himself on a day certain to be incarcerated for up to 179 days. We affirm the trial court’s determination of contempt. See Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985).
Part of the contempt order, however, is impermissible to the extent that it allows for prospective incarceration without due process protection. Phillips v. Phillips, 502 So. 2d 2 (Fla. 4th DCA 1986); Lang v. Lang, 404 So. 2d 190 (Fla. 4th DCA 1981). As the order is now worded, the former husband is subject to incarceration without a prior hearing on his ability to purge himself of the contempt. In Thompson v. Thompson, 576 So. 2d 436 (Fla. 4th DCA 1991), we held that a contempt order can defer punishment, but only so long as the trial court provides for another hearing before any imprisonment might actually begin. In this order, the trial judge failed to include this indispensable ingredient.
We therefore remand with instructions to enter a new contempt order consistent with this opinion.
WARNER, GARRETT and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hipschman v. Cochran, 683 So. 2d 209 (Fla. 4th DCA 1996)…urt order. Bowen, 471 So. 2d at 1279. It is not uncommon, for example, that a person needs time to sell an asset before having the ability to make a given payment. See Thompson v. Thompson, 576 So. 2d 436 (Fla. 4th DCA 1991). In Mertens v. Mertens, 596 So. 2d 1285, 1286 (Fla. 4th DCA 1992), we held that: Part of the contempt order, however, is impermissible to the extent that it allows for prospective incarceration without due process protection. Phillips v. Phillips, 502 So. 2d 2 (Fla. 4th DCA 1986); Lang v…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Haldale Corp. v. Avante Garde Condo. Ass'n, Inc., 502 So. 2d 2 (Fla. 4th DCA 1986)
- Holland v. State, 576 So. 2d 436 (Fla. 3d DCA 1991)
- Causeway Lumber Co., Inc. v. Associated Fla. Contractors, Inc., 404 So. 2d 190 (Fla. 4th DCA 1981)