Fort Lauderdale Divorce Lawyer Blog

The purpose of civil contempt is to obtain compliance with a child support, alimony or general court order and can only be used when the contemnor has the ability to comply.
First, your divorce lawyer in Fort Lauderdale must have the court determine whether the defaulting party has willfully violated the court order. Next, the court must determine the appropriate remedial measure. If the Florida marital and family law judge orders that the contemnor is to be jailed, the court must make a specific finding that he or she has the present ability to pay the purge.

In Aburos v Aburos, the former husband appealed an order finding him in indirect civil contempt and requiring him to be incarcerated which was entered by Miami divorce court Judge Amy Steele Donner for failing to pay the former wife alimony and child support pursuant to the Final Judgment of Dissolution of Marriage. Specifically, the former wife asked the trial court to find the former husband in contempt of court for his failure to pay $1,700 per month for permanent periodic alimony and $1,693 per month in child support.

At the hearing, the former husband alleged that he has $52 in his bank account and a car worth $1,350. He also testified that he earned $2,160 per month working in his sister's retail store and lived in his sister's apartment. It was also revealed that while the former husband had access to the store's bank account which contained $25,000 and a signature stamp used to pay normal business operating expenses, he was not authorized to issue checks or withdraw funds for his personal use.

In reversing the decision of the trial court, the Third District Court of Appeal found that the former husband did not have the present ability to pay the $25,000 purge. The court reasoned that the former husband's ability to pay was based upon his access to his sister's bank account and his sister's present ability to pay the purge. The court further stated that the trial court erred in relying upon the good fortune and resources of the former husband's family member since the former husband was not permitted to legally use his sister's bank account for his own personal purposes.

You may be required to hire a Fort Lauderdale divorce lawyer to enforce your child support award through civil contempt. Civil contempt sanctions are utilized by the marital and family law court to compel compliance with a court order and used to compensate the moving party for losses sustained by the contemnor's willful failure to comply with a divorce court order or judgment that requires him or her to pay child support.

One of the sanctions that a Fort Lauderdale divorce attorney may request is to revoke a delinquent obligors drivers license and motor vehicle registration as a sanction in order to compel payment of your child support. If the court orders incarceration, a coercive fine or any other coercive sanction for failing to pay child support, it is required that conditions be set to purge the contempt, based upon the obligors present ability to pay or comply. Accordingly, the sanction of a driver's license suspension requires the Florida marital and family law court to find a present ability to pay any purge amount set by the court.

In a Fort Lauderdale divorce case, you may ask your Broward divorce attorney to enforce a court order or judgment. In many instances, enforcement is sought when a spouse does not pay alimony or child support. Your Florida marital and family law lawyer may also seek enforcement if your spouse does not comply with child custody orders or pay your attorney's fees and costs. Contempt of court is a mechanism that can be used to coerce compliance or even punish for non-compliance with a court order or judgment.

In Berlow v Berlow, the Third District Court of Appeal reversed a decision of the Miami-Dade divorce court that found the former husband in contempt of court for failing to provide the former wife with an irrevocable term life insurance policy. The parties divorced in 1994. In 2006, the former husband agreed to obtain a $1,000,000 irrevocable term life insurance policy naming the former wife as the beneficiary within 90 days.

At the Miami divorce hearing, the trial court found that the former husband willfully disregarded the prior court order and ordered the former husband to pay a $5,000 fine to the Miami-Dade County Fine and Forfeiture Fund within thirty days and to provide the required life insurance policy to the former wife. However, the contempt order did not contain a purge provision.

On appeal, the former husband argued that the trial court's order is not a valid civil or criminal contempt order. In reversing the decision of the Miami-Dade marital and family law court, the Third District Court of Appeal found that the order does not provide the opportunity for the former husband to avoid the $5,000 fine by providing the life insurance to the former wife. The court reasoned that since the contempt order did not contain a purge provision, it is a fine which is considered criminal contempt since the contemnor was not provided the ability to purge the contempt. The court further stated that since the trial court's order appears to be an indirect criminal contempt order, the appropriate procedural rules were not followed.

Civil contempt is remedial in nature. In order for a sanction to be used in civil contempt, it must contain a purge provision that affords the contemnor the opportunity to avoid the sanction. On the otherhand, criminal contempt is to vindicate the court's authority or to otherwise punish offensive conduct. Criminal contempt is essentially a crime. The contemnor must be afforded the same constitutional safeguards afforded to criminal defendants including, but not limited to, strict compliance with Rule 3.840 of the Florida Rules of Criminal Procedure.

In Fiore v. Atheneos, the Fourth District Court of Appeals in West Palm Beach reversed a divorce judge who presides north of Broward County who held a mother in direct criminal contempt of court for her failure to execute her children's passport applications. Judge Moses Baker, Jr. ordered the mother to complete the passport applications which the father had previously provided to her to execute and return. When the mother failed to comply, the Florida divorce judge treated her conduct as direct criminal contempt of court. However, on appeal, the Fourth District explains that the trial court was in error.

The court can hold a person in indirect criminal contempt, when the contemptuous conduct occurs outside of the judge's presence. To hold a person in indirect criminal contempt first, the judge, based on his own motion or the affidavit of a person with knowledge of the contempt, issues and signs an order directed to the defendant stating the essential facts constituting the criminal contempt and directing the defendant to appear before the court. The order shall specify the time and place for the hearing on the charge of contempt and shall allow the defendant reasonable time to prepare for his or her defense

To hold a person in direct criminal contempt, the contemptuous conduct must occur in the presence of the court, in front of the judge. A judge must recite to the defendant the essential, or specific, facts upon which the court is holding the person in contempt. Second, the judge must allow the person an opportunity to explain to the court why he should not be adjudged guilty for his actions.

Here, the mother's failure to execute and return the passport application did not occur in the presence of the court; therefore, holding her in direct criminal contempt was improper.
The Fourth District Court of Appeals also reversed the trial court's order holding the mother in direct criminal contempt because the trial judge did not follow the procedures outlined in the rule. The appellate court did however uphold the trial court's decision to grant the father's motion to compel the mother to complete the passport applications as well as his motion for sanctions against the mother for her failure to comply with the original order.

In Anderson v. Department of Revenue, the Fourth District Court of Appeals reversed a Broward County, Florida divorce court decision holding an indigent father in contempt of court for his failure to pay child support and for setting a purge of $5,000.00. Judge Alfred J. Horowitz, a divorce judge in Fort Lauderdale, Florida ordered Mr. Anderson to pay $5,000 in child support arrears within 48 hours to avoid jail time. Mr. Anderson timely appealed Judge Horowitz's order to the Fourth District Court of Appeals because he was indigent; and therefore, would not be able to make the immediate $5,000 payment. The trial court determined that Mr. Anderson was indigent purposes of his appeal.

Mr. Anderson was in child support arrears over $50,000. Even though he owed a substantial amount of money, the Fourth District Court of Appeals held that the trial court committed reversible error in finding Mr. Anderson in contempt of court and thereafter determining that he was indigent for the purposes of the appeal. The Court reasoned that the finding of indigent status evidenced an inability to pay the $5,000.00 purge.

When a party is requesting that a court find an obligor in indirect civil contempt of court, incarceration cannot be used as a means to seek compliance with the court order when the contemnor does not have the present ability to purge himself of contempt. The contemnor must have the key to the jailhouse door.