Fort Lauderdale Divorce Lawyer Blog

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.