KARL O. KOEPKE

v.

NANCY M. KOEPKE

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

KARL O. KOEPKE,

Appellant,

v. Case No. 5D18-2231

NANCY M. KOEPKE,

Appellee.

________________________________/

Decision filed July 26, 2019

Appeal from the Circuit Court for Orange County, Donald A. Myers, Jr., Judge.

Roy D. Wasson, of Wasson & Associates, Chartered, Miami, for Appellant.

Gregory M. Wilson, Orlando, for Appellee.

PER CURIAM.

AFFIRMED.

GROSSHANS, J., and ROBERSON, E.C., Associate Judge, concur. COHEN, J., concurs and concurs specially, with opinion.

2

CASE NO. 5D18-2231

COHEN, J., concurs and concurs specially, with opinion.

Karl O. Koepke (“Former Husband”) appeals the final order finding him in indirect criminal contempt of court in his post-dissolution action against Nancy M. Koepke (“Former Wife”). He raises two issues on appeal: (1) the trial court’s failure to effectuate proper service of process pursuant to Florida Rule of Criminal Procedure 3.840(a), and (2) the insufficiency of evidence establishing willfulness. The second argument raised is meritless. Former Husband, a practicing lawyer, has been battling with Former Wife over his payment of alimony. During the pendency of the proceeding, Former Wife sought discovery related to Former Husband’s anticipated settlement of a personal injury case, in which he was expected to generate a significant award of attorneys’ fees. Former Wife sought to use the award to resolve Former Husband’s unpaid alimony obligation. However, after settling the personal injury case, Former Husband proceeded on a course of conduct devised to conceal from Former Wife both the settlement and his award of attorneys’ fees. Ultimately, Former Husband placed a significant portion of his awarded fees¹ into an irrevocable trust to shield the monies from use for repayment of past due alimony. The record amply supports the trial court’s findings holding Former Husband in indirect criminal contempt. The court, in its well-articulated order, stated: In this case, the Court concludes that the Defendant’s responses to the discovery requests, both as a lawyer and client, were untruthful and intentionally misleading, interposed for the purpose of obfuscating and delaying Former Wife’s discovery of the terms of the Settlement Agreement at Mediation. At the time the Defendant produced no settlement

. . . .

While successfully accomplishing the delay in disclosure of the personal injury case settlement, Defendant researched, planned and executed a diversion of the attorneys’ fees to an irrevocable trust. The diversion effectively shielded a substantial asset that would have been available for payment of overdue, unpaid alimony and attorneys’ fees/costs as appropriate. Further, it impacted the Court’s ultimate analysis of the Defendant’s “ability to pay.” This is a financial win for the Defendant, at the cost of integrity and fairness in the justice system.

. . . .

Lawyers are sworn to uphold principles of truth and honor in the administration of justice, and shall “never seek to mislead the judge . . . by any artifice or false statement of fact or law.” The Defendant intentionally violated his oath and these enduring principles that are fundamental to the integrity of our system of justice. In doing so, he disrupted the orderly administration of justice, and hindered, obstructed, delayed, and frustrated the prosecution of this case. Sanctions for contempt of court are mandated by the law and the facts of this case.

We fully agree with the trial court’s conclusions on this issue and find no error. Former Husband’s argument as to service of process merits discussion. Former Husband seeks reversal of the order to show cause because a sheriff or process server did not serve him the order. I disagree.

(a) Order to Show Cause. The judge, on the judge’s own motion or on affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.

The rule is silent as to the required method of service. Here, Former Husband was served the order to show cause through the E-Portal System, which sent the order and a notice of electronic filing to the attorneys of record. In this case, the attorneys of record included Former Husband, his counsel, and Former Wife’s counsel. Former Husband does not suggest that he was unaware of, or surprised by, either the allegations raised against him or the occurrence of the hearing. He appeared at the hearing, and both he and his counsel in the dissolution case testified. Despite not raising this issue below, Former Husband argues that the failure to effectuate personal service of process of an order to show cause constitutes fundamental error. Former Husband relies upon Graham v. Florida Department of Children & Families, 970 So. 2d 438 (Fla. 4th DCA 2007). In Graham, the trial court appointed Catholic Charities of the Diocese of Palm Beach as the emergency temporary plenary guardian of Graham’s incapacitated mother. Id. at 440. Graham allegedly removed his mother, as well as her money, from the jurisdiction of the court. Id. Catholic Charities filed a verified petition for an order compelling Graham to disclose his mother’s location and to show

Fla. R. Jud. Admin. 2.516(b)(1); see also Fla. R. Civ. P. 1.080(a) (“Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action

2 While I agree that because of the criminal nature of such indirect contempt issues, the full panoply of procedural safeguards should be provided and an individual’s due process rights should be scrupulously honored, I question such a per se rule.