Articles Posted in Indirect Civil

Many years ago, Frank Sinatra sang that “Love is lovelier the second time around.” For some, though, that isn’t true. There’s a reason that the couple broke up the first time – and those problems eventually doom the relationship the second time around. Some couples may divorce and remarry and divorce again. Others may make it to the brink of divorce, perhaps even going so far as for one spouse to file a divorce petition and for both spouses to agree to the terms of a marital settlement agreement before backing off and deciding to remain married.

If you’re in a situation like the second scenario and you eventually decide to divorce years later, what, you may wonder, should you do in terms of dealing with that old settlement agreement? The first thing you should definitely do is consult an experienced Fort Lauderdale divorce attorney to get the customized answers you need for your specific situation.

A recent case from Miami-Dade County looked into exactly that scenario of a near divorce followed by an actual divorce years later. V.T., the husband filed for divorce in 2009. In 2012, both spouses agreed to terms on a marital settlement agreement. However, the husband never pursued finalizing the divorce and the court threw out the case in 2013 after neither spouse showed up for a scheduled hearing.

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Sometimes, the solution to avoiding a citation for contempt of court is a simple one: cease disobeying the court’s order(s) and do what you were ordered to do. However, it isn’t always that straightforward, and sometimes judges take impermissible actions in contempt cases. You may find yourself improperly cited for contempt at a hearing you didn’t even attend or may find yourself on the receiving end of an improper punishment. Whenever you are facing possible contempt, you need to know what to do. And what to do needs to start with retaining an experienced South Florida family law attorney.

A pair of recent cases point out how judges can go astray and how you can use the legal process to undo such actions when they happen. First, there was the case of K.A., a mother from here in Miami. In her case, the trial judge found her in contempt of court and also altered the terms of the parents’ timesharing arrangement. Neither parent had requested modification of timesharing; rather, the trial judge reduced the mother’s timesharing as a punishment for her contempt of court.

Altering your timesharing isn’t a proper penalty for contempt

The law gives judges several options when it comes to handing out penalties for a party’s contempt of court. The judge, depending on whether the contempt was civil or criminal, may order the party in contempt to go to jail, to pay a fine or pay things like the other side’s attorney’s fees and/or court costs. One thing that a judge cannot do in Florida is reduce a parent’s timesharing as a penalty for contempt. Modification of timesharing requires proof of several things, including evidence that it is in the best interest of the child. It also requires that one parent have made a motion and properly placed the issue of timesharing before the court. Simply modifying timesharing without a request for modification, solely because one parent was in contempt, is not proper, so the reduction of K.A.’s timesharing was reversed by the appeals court.

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When you go through a divorce in Florida, you may be ordered to make payments to your ex-spouse for various different reasons. While the preferred outcome is to make all payments in full and on a timely basis, it is nevertheless important to understand the difference in possible punishments for failing to pay different kinds of obligations. In one recent case in North Florida, the First District Court of Appeal threw out a finding of contempt against an ex-husband, ruling that the payment he failed to make on time was neither child support nor alimony, so he was not subject to the trial court’s contempt powers.

In this case, a couple from the Jacksonville area, S.S. (husband) and A.S. (wife), divorced, and the trial court ordered the husband to pay the wife $343 per month in child support and $200 per month from his military pension, starting on Dec. 1, 2014. On Dec. 4, the husband wrote the wife a $343 check but also expressed his intention not to pay the remaining $200. Although the husband eventually did pay the additional $200 on Dec. 22, the wife had already filed a request with the court to find the husband in contempt. The wife argued to the trial judge that she deemed the $343 check to be the $200 sum her husband owed her plus $143 of the $343 of the child support obligation. The trial judge approved of the wife’s “election” to construe the $343 sum in the fashion that she did, and the judge held the husband in contempt for failing to pay his full child support obligation on a timely basis.

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Contempt of court is an important provision of the law. It allows judges to punish and disincentivize parties from hindering the administration of justice. This may be especially relevant in family law cases where people, who would otherwise never think of defying a judge, do so, not so much due to their contempt for the court, but their contempt for their ex-spouses. Contempt is a serious matter and the law requires judges to go through several mandatory steps before they find parties in contempt. Failure to clear each of those procedural hoops can lead to an appellate court’s reversal of a contempt finding, as was the case in the recent decision in Wilcoxon v. Moller.

A couple reached a divorce settlement agreement in 2009 that laid out several terms regarding the couple’s two children, including health insurance, the children’s extracurricular activities and communication regarding shared parenting responsibilities. The parties agreed to maintain accounts on a subscription-based website in order to facilitate their communications. After a motion by the husband, the trial court found the wife in contempt by virtue or her having allowed her subscription to the website to lapse, failing to transport the children to extracurricular activities and failing to provide the husband with copies of the children’s health insurance cards.

The 4th District Court of Appeal overturned the contempt ruling. The appellate court did so because the trial court did not follow several necessary steps. Before a court can find a person in contempt, the court must have created an underlying order that was clear enough to put the parties on notice that the court was ordering them to do (or refrain from) certain actions.
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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.

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.

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.

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.

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