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Orlando Family Law Attorneys – Contempt Of Court

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Contempt arises when a party fails to comply with the terms of a court order. Contempt proceedings may be for civil contempt, indirect criminal contempt, or direct criminal contempt. If a party fails to perform as required by a court order, that party may be held in contempt. However, depending on the type of the non-compliance or the severity of the party’s actions, the type of contempt may differ.

 

The purpose of civil contempt is to coerce action or non-action by a party. This type contempt proceeding is ordinarily instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease to perform an act. For example, if one party fails to pay alimony, the court will proceed with civil contempt proceedings where the judge may order the non-conforming party to pay the alimony arrearage by a certain date. If the party fails to pay the arrearage by that date, then the party must report to jail. Alternatively, the judge could order an individual to jail, but allow him or her to purge the sentence and be released from jail by paying a certain amount of money. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor “carries the key to his cell in his own pocket.” However, with this type of contempt the judge must make a finding that the individual has the ability to pay and is willfully choosing not to do so.

 

Criminal contempt proceedings are maintained solely and simply to vindicate the authority of the court or to punish for violation of an order of the court. There are two type of criminal contempt; indirect and direct. Since the purpose of the contempt proceedings is to punish, greater procedural due process safeguards are involved. This principle is recognized in Fla. R. Crim. P. 3.830 and Fla. R. Crim. P. 3.840. The rule appropriate to the proceedings is determined by whether the contemptuous conduct is direct or indirect.

 

For all types of contempt, an evidentiary hearing is required. If you have a contempt issue, the DeWitt Law Firm can help. Whether you want to try to have someone held in contempt or a contempt motion has been brought against you, the DeWitt Law Firm can present your case to the court and guide you through the complicated contempt process.

Notice Prior to Contempt

Pursuant to Rule 12.615(b), Florida Family Law Rules of Procedure, civil contempt may be initiated by motion. No civil contempt may be imposed without notice to the alleged contemnor and without providing the alleged contemnor with an opportunity to be heard. The civil contempt motion and notice of hearing may be served by mail provided notice by mail is reasonably calculated to apprise the alleged contemnor of the pendency of the proceedings. The notice must specify the time and place of the hearing and must contain the following language: “FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD. The motion must recite the essential facts constituting the acts alleged to be contemptuous. Rule 12.615(b), Florida Family Law Rules of Procedure.

 

The Appellate Courts in Florida have held that it is error for the trial court to find a party in contempt without first following above-mentioned notice procedure. A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.

Direct Criminal Contempt

For criminal contempt, there is a higher level of due process that must be followed. In short, indirect criminal contempt is contempt that occurs outside the direct view of the court. The procedures under rule 3.840, Florida Rule of Criminal Procedure, must be strictly followed before a person is found guilty of indirect criminal contempt. A court’s failure to strictly comply is fundamental error and no objection is required. Further, an order to show cause is legally insufficient if it relies on an unsworn allegation or the sworn affidavits were not incorporated into the show cause order. The penalties for indirect criminal contempt can be quite severe, including up to 6 months of incarceration. It is imperative to speak to an attorney if you are facing indirect criminal contempt.

Indirect Criminal Contempt

Despite the constitutional guarantee to the right to counsel, courts of the United States have long had the inherent authority to impose immediate penalties in direct criminal contempt proceedings, where the misconduct occurred within the court’s direct view and interfered with the court’s ability to discharge its essential functions. This departure from the accepted standards of due process is permissible because the direct criminal contempt power is essential to protect the courts in the discharge of their functions. This power is restricted to suppressing and punishing court-disrupting misconduct that occurred within the presence of the court.

Contempt Cannot Be Used to Enforce Debts

Enforcement through contempt of debts, not involving support, violates Article I, section 11 of the Florida Constitution, which prohibits imprisonment for debt. Debts not involving support (child support or alimony) may not be enforced through contempt, even if given effect in a final judgment of dissolution, because to do so violates constitutional provision prohibiting imprisonment for debt. Contempt of debts is only permitted when it relates to spousal or child support, enforcement of a child custody order, or orders awarding attorney’s fees and costs. Further, a party cannot be held in contempt for non-compliance with a court order if the party did not have the ability to comply with the court order. Thus, before imposing contempt sanctions, a trial court must make an affirmative finding that the contemnor had the ability to comply with the court’s prior directive.