R. W. AVERY
v.
DEWITT SINCLAIR, AS SHERIFF OF POLK COUNTY, FLORIDA
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R. W. Avery challenges a contempt order sentencing him to jail for failure to pay alimony arrearages. The Florida Supreme Court holds that because the contempt order was based on past noncompliance and imposed an indefinite term of imprisonment (until payment or further court order), it is void for indefiniteness and must specify a definite term.
A contempt order predicated on past noncompliance with a court order must specify a definite term of imprisonment. An order condemning the offender to imprisonment for an indefinite and indeterminate period, or until payment of arrearages, or until the further order of the court, is void for indefiniteness and uncertainty.
“The law is well settled in this State that where a contempt order is predicated on a finding of past noncompliance with a court order, and not on any present failure to comply therewith although able so to do, the order, being in its nature a punishment for what the contemnor has heretofore done, must specify a definite term of imprisonment.”
Establishes the foundational rule that criminal contempt orders for past violations require a definite sentence term.
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Join FLexlaw to unlock all legal intelligenceOlivia Williams Avery obtained a divorce decree requiring her husband R. W. Avery to pay permanent alimony according to a property agreement approved …
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Olivia Williams Avery procured a decree of divorce from R. W. Avery, her husband. The final decree required the husband to pay permanent alimony to the wife in stated sums at designated periods, in accordance with a certain property agreement entered into between the parties and approved and ratified by the court in the final decree. Subsequently, R. W. Avery becoming in arrears in his alimony payments, Oliva Williams Avery caused the issuance of a rule nisi directed to the defendant in the divorce proceedings requiring him to pay said arrearages or show cause for his failure so to do. In due course Avery filed his motion to quash the rule. Testimony was taken upon the pleadings. Upon the pleadings and testimony the trial court entered an order finding that R. W. Avery was indebted to Olivia Williams Avery in the sum of $502.50 back due alimony, together with the cost of the pro*768ceeding, and that execution do issue therefor. The order also contained the following provisions:
“It Is Further Ordered, Adjudged and Decreed by the Court that the defendant, R. W. Avery, be and he is hereby adjudged in contempt of Court, the Sheriff of Polk County, Florida is hereby ordered and commanded to take the defendant, R. W. Avery, into custody and imprison him, there to remain until the further order of the Court.
“It Is Further Ordered that the defendant, R. W. Avery, • may purge himself of contempt of Court and secure his release from the custody of the Sheriff of Polk County, Florida, upon payment to the plaintiff or to the Sheriff for her use,’ the said sum of $517.85, together with all costs accruing in the enforcement of this Order.”
Under this contempt order R. W. Avery was taken into custody by the sheriff of Polk County, Florida and lodged in the county jail of Polk County. He brings habeas corpus to test the legality of his restraint, contending that the order upon which he is imprisoned is unlawful and void, because it fails to specify a definite term of imprisonment.
The law is well settled in this State that where a contempt order is predicated on a finding of past noncompliance with a court order, and not on any present failure to comply therewith although able so to do, the order, being in its nature a punishment for what the contemnor has heretofore done, must specify a definite term of imprisonment. If the order condemns the offender to imprisonment for an indefinite and indeterminate period, or until he pays the past due alimony, or until the further order of the court, it is void for indefiniteness and uncertainty. See State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735; State ex rel. Bearden v. Pearson, 132 Fla. 878, 182 So. 233; Ex parte Koons, 148 Fla. 625, 4 So. (2nd) 852,
It is therefore ordered and adjudged that petitioner be discharged without prejudice to the circuit court to enter such other or further legal judgment as may be required and shall be in accordance with law.
It is so ordered.
BUFORD, C. J., BROWN and CHAPMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Satterfield v. Satterfield, 39 So. 2d 72 (Fla. 1949)…be a contempt". Our adjudications are uniform in holding that a court has the power to punish for contempt a refusal to obey any legal order, mandate or decree of a court, but the term of imprisonment must be definite and certain. Avery v. Sinclair,153 Fla. 767, 15 So. 2d 846. The commitment period in the case at bar is thirty days. Paragraph One of the challenged order decreed that Ralph Satterfield was indebted to Guelda B. Thach in the sum of $4,735.00 (for arrears in alimony, support and maintenance t…
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State of Fla. ex rel. Marvin D. Byrd v. Howard "Andy" Anderson, 168 So. 2d 554 (Fla. 1st DCA 1964)…pt a refusal to obey any legal order, mandate or decree of a court, but the term of imprisonment must be definite and certain.” The rationale for this rule was expressed by our Supreme Court in its earlier decision in the case of Avery v. Sinclair, 153 Fla. 767,15 So. 2d 846 (1943), as follows: “The law is well settled in this state that where a contempt order is predicated on a finding of past noncompliance with a court order, and not on any present failure to comply therewith although able so to do, the…
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Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979)…. Roberts, 328 So. 2d 461 (Fla. 4th DCA 1976); Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962). . This relief is of course granted without prejudice to any further and appropriate proceedings in the Dade County Circuit Court. Avery v. Sinclair, 153 Fla. 767, 15 So. 2d 846 (1943); State ex rel. Trezevant v. McLeod, supra, at 170 So. 734. . The court expresses its appreciation to the firm of Sinclair, Louis, Siegel and Heath which, at our request, appeared as amicus curiae and ably presented argument on…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. McLeod, 126 Fla. 229 (Fla. 1936)
- Ex Parte: Ray F. Koons, 148 Fla. 625 (Fla. 1941)
- State v. Pearson, 132 Fla. 878 (Fla. 1938)