PETITION OF JAMES STEVEN HUGHES
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A Florida appellate court reversed a trial court's finding of civil contempt against a natural mother for allegedly violating visitation orders in a custody dispute, holding that the contempt finding was improper because no testimony was taken and the moving party presented no evidence to support the allegations.
A finding of civil contempt cannot be entered unless the moving party has proved his allegations by a preponderance of the evidence through testimony or other evidence. Because the natural father offered no evidence to support his contempt allegations, the trial court's contempt finding was improper and must be reversed.
[1] A finding of civil contempt requires the moving party to prove allegations by a preponderance of the evidence.
[2] A finding of contempt cannot be entered without testimony or other evidence to support the allegations.
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Join FLexlaw to unlock all legal intelligence“a finding of civil contempt is a serious matter and cannot be entered unless the moving party has proved his allegations by a preponderance of the evidence”
Establishes the evidentiary standard required for civil contempt findings
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Join FLexlaw to unlock all legal intelligenceIn a step-parent adoption proceeding, the natural father contested the adoption and cross-petitioned for custody of the child. The step-parent abandon…
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DOWNEY, Judge.
In a step-parent adoption proceeding the respondent natural father in addition to contesting the adoption also cross petitioned against the natural mother to obtain custody of the child.
At trial the step-parent abandoned his petition for adoption leaving the custody issue for resolution by the court. The final judgment awarded custody to the natural mother and fixed definite visitation rights for the natural father. The natural father filed a Petition for Clarification and Enforcement of Judgment for Visitation, alleging that the mother had failed to comply with the oral order of the court made the day of the trial relative to visitation. Said motion was noticed for hearing on a day certain but only counsel for the respective parties attended and no testimony was taken. Several days later the court entered the order under review and found the mother in contempt for failing “to comply with paragraph 6 of this Court’s order dated June 24, 1974.” The court did not sentence the mother pursuant to its finding of contempt, but it did provide a manner in which she could purge herself of contempt.
Finally, the court assessed a $100 attorney’s fee against the mother. In our judgment the finding that the mother was in contempt cannot stand. The matter was before the court on the natural father’s unsworn motion, and no testimony was taken upon which to base the adjudication of contempt. Although the quality of the burden of proof is heavier in a criminal contempt proceeding, still a finding of civil contempt is a serious matter and cannot be entered unless the moving party has proved his allegations by a preponderance of the evidence. In re S.
L. T., Fla.App.1965, 180 So. 2d 374. As we noted above,, in the present case the mov-ant offered no evidence to support his allegations.
Therefore the finding of contempt was improper. Since we hold the adjudication of contempt to be erroneous, it follows the assessment of attorney’s fees against the appellants is also error.
Reversed.
CROSS and OWEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Schwartz v. Schwartz, 670 So. 2d 1204 (Fla. 4th DCA 1996)…FARMER, Judge. We agree that the order of contempt was error. A finding of contempt must be based on evidence and not solely on the unsworn statements of counsel. See Petition of Hughes, 318 So. 2d 409 (Fla. 4th DCA 1975). We reverse the finding of contempt and remand for an evidentiary hearing. POLEN and SHAHOOD, JJ., concur.…
Authorities Cited
- In the Interest of S. L. T., 180 So. 2d 374 (Fla. 2d DCA 1965)