Is a Contempt order that operates prospectively, by ordering automatic commitment in the event of future noncompliance without requiring additional hearing a violation of due process? : BLOG
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Is a Contempt order that operates prospectively, by ordering automatic commitment in the event of future noncompliance without requiring additional hearing a violation of due process?

by St. Petersburg/Florida Family Law Attorney on 02/14/16

This was a question that was presented to the Florida Second District Court of Appeal not too long ago.  The appellant appealed a civil contempt order entered by the circuit court following his failure to abide by the terms of the marital settlement agreement between former husband and wife.  The civil contempt order, was imposed as a sanction in a prospective fashion.  The Appellate Court reversed.

To summarize what transpired in the lower levels without going into too much detail, the appellant and appellee were married for almost 30 years.  The parties entered into a marital settlement agreement, in which the crux of the agreement stated the wife was to transfer her half of the parties' business to husband, and in return, husband would pay wife $210,000.  In addition, husband was to pay wife $125,000 per year in alimony in addition to maintaining a life insurance policy providing a $1,000,000 benefit payable to wife.  The husband did make the payments for equitable distribution, however by September 13, 2013, husband fell behind $310,000 in alimony payments and $45,000 on premium payments for life insurance.  On October of 2013, the parties did stipulate to the entry of a judgment for arrearages, which judgment was entered in October of 2013. When the husband was unable to pay this judgment, the wife sought a civil contempt order to compel him to pay the judgment.  

A hearing was held on the wife's civil contempt motion and at that hearing, the court found that the husband was willfully refusing to pay his obligation. However, the order stated that "On or before the 16th of each  and every month beginning on January 16, 2014, Former Husband may purge himself of said contempt, and if incarcerated at that time shall be released from the Pinellas County Jail without further order, upon payment of the sum of $11,416.67 per calendar month..." Furthermore, "If Former Husband has not purged himself of said contempt within the time frame specified in this paragraph, he shall report to the Pinellas County Jail on the 16th day of each and every month beginning January 16, 2014, at 5:00 p.m, then and there to commence serving said sentence."

In Bowen v. Bowen, the supreme court set out the proper procedures for imposing contempt and held that "incarceration for civil contempt cannot be imposed absent finding by the trial court that the contemnor has the present ability to purge himself of the contempt. Incarceration cannot be imposed as a sanction for civil contempt in such a prospective fashion." "Moreover, due process requires that the contemnor be apprised of the nature of his contempt and that he be afforded an opportunity to be heard and defend the allegations against him." Cokonougher v. Cokonougher, 543 So. 2d 460.   As a result, a contempt order that operates prospectively, by ordering the automatic issuance of a commital order in the event of future non-compliance without requiring an additional hearing, violated due process and is improper.  

So to basically sum up, the lower courts order re: the contempt order, was reversed (only the portion addressing imposing incarceration based on prospective contempt orders). The court cannot issue prospective contempt orders as it would be a direct violation of due process.  In this present scenario, let's say on month 2, appellant is unable to make the payment by the 16th of the month.  Then according to the order, he would be in contempt of court without a hearing to determine if he has the ability to pay, proper notice, and an opportunity to be heard.  If you have any questions, please do not hesitate to contact us for a free over the phone consultation, or a low cost in-office consultation in our St. Petersburg office.  It is very important to make sure you have a competent St. Petersburg Family Law lawyer or attorney by your side, as incompetent counsel can cost lots of money and headaches down the road.  

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