GEORGE DAMKOHLER, APPELLANT,
v.
HEIDI DAMKOHLER (POLLMANN), APPELLEE
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In a family law case, the trial court found the father in willful contempt of court for failing to pay child support and imposed a mandatory 30-day jail sentence. The appellate court held that while the contempt finding was valid, the mandatory sentence violated Florida law because it did not allow the defendant to obtain release through compliance with the court's order, contrary to the civil contempt principle that a contemnor 'carries the key of his prison in his own pocket.'
The court held that the failure to make an affirmative finding of financial ability to pay does not void a contempt order for willful non-payment of child support. However, the mandatory 30-day jail sentence is invalid because it does not allow the contemnor an opportunity to obtain release through compliance with the court's order, violating the fundamental principle of civil contempt that the contemnor 'carries the key of his prison in his own pocket.'
[1] An appellant challenging the sufficiency of evidence bears the burden of providing a complete record of the proceedings below; in the absence of such a record, an appella…
[2] A contempt order is not void on its face for failing to make an affirmative finding of the contemnor's financial ability to pay arrears.
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Join FLexlaw to unlock all legal intelligence“the defendant had never paid any monies whatsoever for the support of his child and that he is delinquent in the payment of support in the sum of $11,165.00 through April 30, 1976. It is the opinion of this Court that in its sixteen years in the practice of law, including ten years on the bench, this is the most flagrant case of child neglect and non-support that the Court has ever seen.”
Establishes the severity of the defendant's non-payment and the trial court's findings supporting the contempt determination.
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Join FLexlaw to unlock all legal intelligenceThe defendant was ordered to pay child support in a dissolution of marriage case. The record showed he had never paid any monies for his child's suppo…
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ALDERMAN, Judge.
This is an appeal from an order in a dissolution of marriage case entered after final judgment. Appellant was adjudged to be in contempt of court for failure to pay child support and sentenced to mandatory confinement in the county jail for thirty days.
Appellant alleges that the evidence before the trial court was not sufficient to support a finding of wilful contempt. The record on appeal does not include a transcript of the proceedings below. Where an appellant challenges the sufficiency of the evidence he has the burden of bringing before this court a complete record of the proceedings below. In the absence of such a record we must presume that there was sufficient evidence and testimony presented to the trial court to support its findings of fact. Nelson v. State, 85 So. 2d 832 (Fla.1956); Hall v. Bass, 309 So. 2d 250 (Fla. 4th DCA 1975).
We are therefore limited to a consideration of any fundamental error which appears on the face of the order. The relevant portion of the contempt order which is the subject of this appeal is set out below. “The records reflect that the defendant had never paid any monies whatsoever for the support of his child and that he is delinquent in the payment of support in the sum of $11,165.00 through April 30, 1976. It is the opinion of this Court that in its sixteen years in the practice of law, including ten years on the bench, this is the most flagrant case of child neglect and non-support that the Court has ever seen. It is thereupon
ORDERED that the defendant George Damkohler is adjudged in willful and flagrant contempt of Court and he is hereby remanded to the custody of the Sheriff of Palm Beach County and sentenced to mandatory confinement in the county jail of Palm Beach County, Florida, for a period of thirty (30) days from the time of his arrest. It is further
ORDERED that the defendant shall pay a minimum of $15.00 per week toward the aforementioned arrearage and that he shall hereafter pay the regular weekly support of $35.00 promptly as each payment is due.”
Appellant first contends the order is void because it does not make an affirmative finding that appellant had a financial ability to pay the arrears. In support of his contention appellant relies upon Ratner v. Ratner, 297 So. 2d 344 (Fla. 3d DCA 1974). However this court in Garo v. Garo, 327 So. 2d 845 (Fla. 4th DCA 1976) rejected Rat-ner. Subsequently the Third District, in the recent case of Flynn v. Flynn, 330 So. 2d 728 (Fla. 3d DCA 1976) receded from its holding in Ratner and adopted the rationale of Garo. In the present case the trial court found defendant to be in wilful and flagrant contempt of court. We hold that the failure to make an affirmative finding that appellant had a financial ability to pay the arrears does not make the order void on its face.
Appellant’s next point has merit. The mandatory thirty day sentence imposed by the court does not allow appellant the opportunity of obtaining his release by complying with the court’s order. In civil contempt proceedings the penalty is coercive rather than punitive. The mandatory sentence imposed in this case fails to recognize and carry into effect the rule established in Florida that in a case of civil contempt the contemnor “carries the key of his prison in his own pocket.” State v. Anderson, 168 So. 2d 554 (Fla. 1st DCA 1964); Wallens v. Buchanan, 168 So. 2d 687 (Fla. 3d DCA 1964); In Re: S. L. T., 180 So. 2d 374 (Fla. 2d DCA 1965). This portion of the contempt order is invalid on its face and must be reversed. The remainder of the order is affirmed and the case is remanded to the trial court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
MAGER, C. J., and CROSS, J., concur.
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Nuzhat Ahmed v. Travelers Indem. Co., 516 So. 2d 40 (Fla. 3d DCA 1987)…not been prepared pursuant to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)(3), a judgment which is not fundamentally erroneous on its face must be affirmed. See Thomas v. Thomas, 498 So. 2d 668 (Fla. 5th DCA 1986); Damkohler v. Damkohler, 336 So. 2d 1243 (Fla. 4th DCA 1976). Affirmed.…
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Boylan v. Boylan, 571 So. 2d 580 (Fla. 4th DCA 1990)…ment below should then be affirmed unless the judgment is fundamentally erroneous on its face. In re Guardianship of Read, 555 So. 2d 869 (Fla. 2d DCA 1990); Ahmed v. Travelers Indemnity Co., 516 So. 2d 40 (Fla. 3d DCA 1987); Damkohler v. Damkohler, 336 So. 2d 1243 (Fla. 4th DCA 1976). The trial court’s order in this cause was not fundamentally erroneous, therefore we affirm the judgment below. Affirmed. GLICKSTEIN and WARNER, JJ., concur. ANSTEAD, J., dissents with opinion.…
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Hudson Pest Control, Inc. v. Westford Asset Mgmt., Inc., 622 So. 2d 546 (Fla. 5th DCA 1993)…evidence adduced to support them. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979); McClosky v. Martin, 56 So. 2d 916 (Fla.1951); Larjim Management Corp. v. Capital Bank, 554 So. 2d 587 (Fla. 3d DCA 1989); Damkohler v. Damkohler, 336 So. 2d 1243 (Fla. 4th DCA 1976). Only if the trial judge erred as a matter of law, should we reverse this ease. The record shows the Trust filed a complaint dated February 17, 1992 against Hudson seeking damages for breach of the lease. It alleged that Hudson…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In the Interest of S. L. T., 180 So. 2d 374 (Fla. 2d DCA 1965)
- Nelson v. State, 85 So. 2d 832 (Fla. 1956)
- State of Fla. ex rel. Marvin D. Byrd v. Howard "Andy" Anderson, 168 So. 2d 554 (Fla. 1st DCA 1964)
- Alston v. State, 297 So. 2d 344 (Fla. 3d DCA 1974)
- Wallens v. Buchanan, 168 So. 2d 687 (Fla. 3d DCA 1964)
- Hall v. Bass, 309 So. 2d 250 (Fla. 4th DCA 1975)
- Garo v. Garo, 327 So. 2d 845 (Fla. 4th DCA 1976)