STEVEN FRANK SCHNEIDER, HUSBAND, APPELLANT,
v.
ANGELA M. SCHNEIDER, WIFE, APPELLEE

Fla. 1st DCA | 2016-04-08
No. 1D15-914
OSTERHAUS and WINOKUR, JJ., concur.
189 So. 3d 276 Florida District Court of Appeal, First District (2016) Positive Treatment
Cited by 8 cases

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Holding

The court held that a contempt finding for failure to timely pay a property settlement provision is an abuse of discretion, but affirmed the attorney's fees award due to lack of preservation or transcripts.


Headnotes

[1] A person cannot be held in contempt for failure to comply with a property settlement provision of a final judgment of dissolution of marriage.

[2] A finding of civil contempt is reviewed for an abuse of discretion.

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Facts & Procedural History

The former husband was ordered to pay child support and a portion of his retirement pay monthly. He paid the child support late and stated he would no…

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Opinion of the Court
RAY, J.

RAY, J.

Steven Frank Schneider, the former husband, appeals from a final order finding him in contempt for failure to timely pay an amount due under a final judgment of dissolution of marriagé and awarding attorney’s fees to Angela M. Schneider, the former wife, under a reservation of jurisdiction on this issue in the final judgment. The former husband challenges both the finding of contempt and the award of fees. For the reasons explained below, we reverse the finding of contempt, but we affirm the award of fees due to lack of preservation or transcripts of the.relevant proceedings.

The final judgment required the former husband to pay $343.64 in child support and $200 from his military retirement pay each month, beginning on December 1, 2014. On December 4, 2014, the former *278husband gave the former wife a check in the amount of $343.64 and told her he did not intend to pay the remaining $200. The former wife filed a motion for contempt the next day, and the former husband paid the remaining $200 on December 22, 2014. At the time of the hearing on the former wife’s motion for contempt, the former husband remained current on all payments due under the judgment. The trial court found that the former wife had “elected” to consider the first December payment “as payment for the property settlement, and the remainder as child support.” Ratifying this decision by the' former wife, the court found the former husband in contempt for his “refusal to timely pay the $543.64.”

A finding of civil contempt is reviewed for abuse of discretion. Kea v. Kea, 839 So.2d 903, 904 (Fla. 1st DCA 2003). However, a finding of contempt for unpaid debt is proper only if the debt is alimony or child support. Kea, 839 So.2d at 904. Therefore, it is an abuse of discretion to hold a person in contempt for failure-to comply with a property-settlement provision of a final judgment of dissolution of marriage. Kea, 839 So.2d at 904.

Here, the former husband paid the former wife the exact amount due for December child support three days after it was due and a day before she filed her motion for contempt. The only reasonable interpretation of the check is that it was a payment of child support. By ratifying the former wife’s decision to treat it as something else, the court essentially found the former husband in contempt for failing to make a property-settlement payment on time.1

As for the fee issue, the order suggests that the court unduly focused on a single large-sum check the former husband received just before the trial, without taking into consideration the entire picture of each party’s financial circumstances. Because the fee determination was necessarily based on evidence presented at the final hearing leading to the final judgment of dissolution of marriage, we have taken judicial notice, on our own motion, of the portion of the record filed in the prior appeal from the final judgment, hoping that it would shed light on the trial court’s decision. See Ellsworth v. Ins. Co. of N. Am., 508 So.2d 395, 398 (Fla. 1st DCA 1987) (recognizing that “in appropriate circumstances an appellate court may take judicial notice of its own records”). The documents in the record give the impression that the final judgment left the parties on roughly equal financial footing, or even that the former wife was in a better financial position, which would make the fee award improper. Hutchinson v. Hutchinson, 185 So.3d 528, 529 (Fla. 1st DCA 2015). However, this observation is only an impression, as no transcripts of the evidentiary hearings at which the parties’ financial circumstances were litigated are available, and the trial court’s orders do not contain findings sufficient to resolve our questions on' this matter one way or the other.2 Although the former husband *279argues error in the lack of sufficient findings, he did not preserve this challenge to the lack of sufficient findings as required by our precedent. See Burkett v. Burkett, 155 So.3d 478, 478 (Fla. 1st DCA 2015). Under these circumstances, we aferm, not knowing if evidence and arguments’ presented at the hearing would clarify the basis for the'fee award and the fee order’s focus on one aspect of the parties’ circumstances. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Burkett, 155 So.3d at 478; Furr v. Furr, 57 So.3d 914, 914 (Fla. 1st DCA 2011).

AFFIRMED in part and REVERSED in part.

OSTERHAUS and WINOKUR, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Gonzalez v. State, 249 So. 3d 1269 (Fla. 1st DCA 2018)
  • Schroll v. Schroll, 262 So. 3d 832 (Fla. 1st DCA 2018)
    …a marital property settlement are not subject to enforcement through contempt proceedings.” Taylor v. Taylor, 653 So. 2d 1126, 1127 (Fla. 1st DCA 1995). There is an exception for child support or alimony obligations, see Schneider v. Schneider, 189 So. 3d 276, 278 (Fla. 1st DCA 2016), but that exception is not applicable here: These parties had no minor children, and the former wife received only nominal alimony. Cf. Lee v. Lee, 710 So. 2d 186, 187 (Fla. 1st DCA 1998) (noting that it is “necessary to…
  • Gibbs v. Gibbs (Fla. 1st DCA 2021)
    …his immediate repayment of funds “borrowed” from business associates, and his more than comfortable lifestyle, was within the court’s discretion. See Harris v. Millett-Harris, 900 So. 2d 712, 713 (Fla. 3d DCA 2005); see also Schneider v. Schneider, 189 So. 3d 276, 277 (Fla. 1st DCA 2016) (applying an abuse of discretion standard of review to a civil contempt finding). The purge amounts set by the trial court were amounts of unpaid alimony which the former husband failed to prove he was involuntarily unable…

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