CONTEMPT
BENCHGUIDE
2018 Edition
*[minor revisions were made to pp. 16 and 57 on 04/19/22]
Contempt Benchguide December 2018
ii
ACKNOWLEDGMENTS
The 2012 edition of this benchguide was based on materials prepared for the 2012
Florida Judicial College by Judges Jacqueline Hogan Scola of Eleventh Judicial
Circuit and Robert N. Scola, Jr., formerly of the Eleventh Judicial Circuit, now of
the Southern District Court of Florida. The Florida Court Education Council’s
Publications Committee acknowledges and thanks these judges for permission to
adapt their materials for this benchguide. This is the 2018 edition of the
benchguide.
PURPOSE
The Publications Committee hopes the Contempt Benchguide will serve as an
educational resource and user-friendly reference for Florida judges. Readers should
always check cited legal authorities before relying on them.
DISCLAIMER
Viewpoints reflected in this publication do not represent any official policy or
position of the Florida Supreme Court, the Office of the State Courts
Administrator, the Florida judicial conferences, the Florida Court Education
Council, or the Florida Court Education Council’s Publications Committee.
FLORIDA COURT EDUCATION COUNCIL’S PUBLICATIONS
COMMITTEE
The Honorable Angela Cowden, Tenth Circuit, Chair
The Honorable Cory J. Ciklin, Fourth District Court of Appeal
The Honorable Josephine Gagliardi, Lee County
The Honorable Ilona Holmes, Seventeenth Circuit
The Honorable Matt Lucas, Second District Court of Appeal
Ms. Gay Inskeep, Trial Court Administrator, Sixth Circuit
© 2008, 2011, 2012, 2013, 2014, 2015, 2016, 2018
Florida Office of the State Courts Administrator. All Rights Reserved.
Contempt Benchguide December 2018
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*04/19/22 revisions:
1. In Chapter 2.I.E.2 Incarceration: “. . . . The maximum punishment that can be
imposed for direct criminal contempt is one year. § 775.02, Fla. Stat. However, any
punishment of six months or more than six months requires a jury trial before
imposition. Aaron v. State, 345 So. 2d 641 (Fla. 1977)
Tips, Caveats, and Problems
• A sentence of six months or less under may be properly imposed upon conviction
without a trial by jury. McCrimager v. State, 919 So. 2d 673 (Fla. 1st DCA 2006);
Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976), approved, 346 So. 2d 68.
* In an abundance of caution, it is recommended that any sentence imposed
without a jury trial be for no more than 179 days.”
2. In Chapter 3.G Sample Indirect Civil Contempt Form: Language was added
warning of consequences of failure to appeal.
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TABLE OF CONTENTS
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Chapter One: Introduction to Contempt ..................................................................... 1
I. Overview of Contempt .................................................................................... 1
A. Definition of Contempt .................................................................................... 1
B. Purpose of Contempt Power ............................................................................ 1
C. Test for Contempt ............................................................................................ 1
II. Types of Contempt .......................................................................................... 2
A. Indirect Contempt and Direct Contempt ......................................................... 2
B. Criminal Contempt and Civil Contempt .......................................................... 2
Chapter Two: Criminal Contempt ................................................................................ 5
I. Direct Criminal Contempt ............................................................................... 5
A. Definition ......................................................................................................... 5
B. Process and Burden of Proof Overview .......................................................... 5
C. Elements of Direct Contempt and Due Process .............................................. 6
1. In General ................................................................................................... 6
2. Conduct Requirements and Presence of the Court ..................................... 6
3. Opportunity to Show Cause........................................................................ 8
4. Written Order ............................................................................................10
D. Specific Examples of Direct Criminal Contempt ..........................................11
1. Erroneous Orders ......................................................................................11
2. Failure to Appear or Testify .....................................................................11
3. Perjury ......................................................................................................13
4. Drug Use ...................................................................................................13
5. Profanity or Disrespectful Conduct ..........................................................13
6. Questioning by Attorney in Violation of Court Order .............................15
E. Punishments ...................................................................................................15
1. Fines and Sanctions ..................................................................................15
2. Incarceration .............................................................................................16
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F. Sample Direct Criminal Contempt Colloquy ................................................16
II. Indirect Criminal Contempt ...........................................................................17
A. Definition .......................................................................................................17
B. Process and Burden of Proof Overview ........................................................18
C. Elements and Due Process .............................................................................19
1. In General .................................................................................................19
2. Conduct .....................................................................................................20
3. Order to Show Cause and Opportunity to Show Cause ...........................21
4. Written Order ............................................................................................24
5. Disqualification of Judge ..........................................................................24
6. Double Jeopardy .......................................................................................24
7. Purge Provisions .......................................................................................25
D. Specific Examples of Indirect Criminal Contempt .......................................25
1. Threat ........................................................................................................25
2. Support Obligations ..................................................................................25
3. Unclear or Erroneous Orders ....................................................................25
4. Contacting Juror .......................................................................................26
E. Punishments ...................................................................................................26
1. Fines ..........................................................................................................26
2. Incarceration .............................................................................................26
3. Order of Contempt ....................................................................................27
F. Right to Counsel ............................................................................................27
G. Sample Forms ................................................................................................28
1. Motion for Order to Show Cause .............................................................28
2. Order to Show Cause ................................................................................30
3. Writ of Bodily Attachment .......................................................................32
4. Order Adjudging Respondent in Indirect Criminal Contempt of Court
and Order of Commitment........................................................................35
Chapter Three: Civil Contempt ................................................................................... 37
I. Indirect Civil Contempt .................................................................................37
A. Definition .......................................................................................................37
B. Process and Burden of Proof Overview ........................................................37
C. Elements of Civil Contempt and Due Process ..............................................39
1. Clear Violation .........................................................................................39
2. Opportunity to Be Heard ..........................................................................40
3. Ability to Comply with Court Order ........................................................43
4. Right to Counsel .......................................................................................44
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5. Deliberate Divestment ..............................................................................44
6. Arrest ........................................................................................................44
7. Order and Purge Provision .......................................................................45
8. Order Not Excessive .................................................................................47
D. Specific Examples of Indirect Civil Contempt ..............................................47
1. Parental Relationships and Visitation .......................................................47
2. Property and Debt Settlement ...................................................................48
3. Support Obligations ..................................................................................49
4. Erroneous, Vague, and Ambiguous Orders ..............................................50
E. Performance of an Act Ordered by Court ......................................................51
F. Punishments ...................................................................................................52
1. In General .................................................................................................52
2. Fines ..........................................................................................................53
3. Incarceration .............................................................................................54
4. Attorney’s Fees .........................................................................................55
G. Sample Indirect Civil Contempt Form ..........................................................56
II. Direct Civil Contempt....................................................................................57
Chapter Four: Juvenile Contempt and Traffic Contempt ...................................... 59
I. Juvenile Contempt .........................................................................................59
II. Traffic Contempt ...........................................................................................61
Chapter One Introduction to Contempt
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Chapter One
Introduction to Contempt
I. Overview of Contempt
A. Definition of Contempt
A refusal to obey a legal order, mandate, or decree constitutes an act of contempt.
§ 38.23, Fla. Stat.; A.A. v. Rolle, 604 So. 2d 813, 815 (Fla. 1992); Richey v.
McLeod, 188 So. 228 (Fla. 1939); Ex parte Earman, 95 So. 755 (Fla. 1923);
Murrell v. State, 595 So. 2d 1049 (Fla. 4th DCA 1992). “Contempt is an act
tending to embarrass, hinder, or obstruct the court in the administration of justice,
or to lessen the court’s authority or dignity.” Richey, 188 So. 2d at 229.
Contempt “must be used only rarely and with circumspection. The provocation
must never be slight, doubtful, or of shifting interpretations. The occasion should
be real and necessary, not murky, and not ameliorated in some less formal
manner.” Woods v. State, 987 So. 2d 669, 676 (Fla. 2d DCA 2007), quoting
Schenck v. State, 645 So. 2d 71, 74 (Fla. 4th DCA 1994).
There are four types of contempt: direct criminal contempt, indirect criminal
contempt, direct civil contempt, and indirect civil contempt.
B. Purpose of Contempt Power
Judicial contempt power is to protect a court against those who disregard its
dignity and authority or disobey its orders. In re Inquiry Concerning Perry, 641
So. 2d 366 (Fla. 1994); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell,
P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608‒609 (Fla. 1994). Orderly
government demands respect for and compliance with court orders. Parisi v.
Broward County, 769 So. 2d 359 (Fla. 2000).
C. Test for Contempt
Contempt exists if conduct interferes with or impugns judicial function. Via v.
State, 633 So. 2d 1198 (Fla. 2d DCA 1994).
Tips, Caveats, and Problems
Chapter One Introduction to Contempt
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• “Contempt does not exist just because a judge feels aggrieved or vexed.”
McRoy v. State, 31 So. 3d 273, 274 (Fla. 5th DCA 2010), citing Via v. State,
633 So. 2d 1198 (Fla. 2d DCA 1994).
• The exercise of the contempt power must “never be used by a judge in a fit
of anger, in an arbitrary manner, or for the judge’s own sense of justice.” In
re Inquiry Concerning Perry, 641 So. 2d 366, 368 (Fla. 1994); Forbes v.
State, 933 So. 2d 706, 715 (Fla. 4th DCA 2006).
• Even an improper threat to hold someone in contempt, without actually
issuing a contempt order, has been held to be an abuse of authority sufficient
to justify discipline against the judge. In re Aleman, 995 So. 2d 395 (Fla.
2008); In re Inquiry Concerning a Judge re Wright, 694 So. 2d 734 (Fla.
1997).
• The offender’s due process rights must be protected in contempt
proceedings. In re Inquiry Concerning Perry, 641 So. 2d 366 (Fla. 1994).
II. Types of Contempt
A. Indirect Contempt and Direct Contempt
Direct contempt is a contemptuous act that is committed in the immediate presence
of the court.
Indirect contempt is an act committed outside the court’s presence. Pugliese v.
Pugliese, 347 So. 2d 422 (Fla. 1977).
When there is doubt as to whether the contempt is indirect or direct, it should be
resolved in favor of the contemnor’s due process rights. Fox v. State, 490 So. 2d
1288 (Fla. 5th DCA 1986).
B. Criminal Contempt and Civil Contempt
Criminal contempt is designed to punish the contemnor. Civil contempt is
remedial. Creative Choice Homes, II, Ltd. v. Keystone Guard Services, Inc., 137
So. 3d 1144 (Fla. 3d DCA 2014); Alves v. Barnett Mortg. Co., 688 So. 2d 459 (Fla.
4th DCA 1997). Criminal contempt involves conduct calculated to embarrass,
hinder, or obstruct the administration of justice. Punishment is used to vindicate
the authority of the court and to punish the contemnor. Bowen v. Bowen, 471 So.
2d 1274 (Fla. 1985); Johnson v. State, 584 So. 2d 95 (Fla. 1st DCA 1991).
Chapter One Introduction to Contempt
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Civil contempt is used to coerce an offending party into complying with a court
order, but not to punish the contemnor for a failure to comply with a court order.
The Florida Bar v. Taylor, 648 So. 2d 709 (Fla. 1995); Johnson v. Bednar, 573 So.
2d 822 (Fla. 1991), receded from in part on other grounds, 769 So. 2d 359 (Fla.
2000).
Tips, Caveats, and Problems
• Civil and criminal contempt are available in both civil and criminal cases.
Grant v. State, 464 So. 2d 650 (Fla. 4th DCA 1985); Fla. R. Civ. P. 1.380,
1.410, 1.510, 1.560, 1.570, Form 1.982; see also Fla. R. Crim. P. 3.830,
3.840. Whether contempt is civil or criminal is not determined by the nature
of the cause from which the contempt citation arose. Deter v. Deter, 353 So.
2d 614 (Fla. 4th DCA 1977); see also Shook v. Alter, 729 So. 2d 527 (Fla.
4th DCA 1999); Tschapek v. Frailing, 699 So. 2d 851 (Fla. 4th DCA 1997).
• The same conduct may result in both civil and criminal contempt charges.
Hope v. State, 449 So. 2d 1315 (Fla. 2d DCA 1984).
• Imposition of a sanction without a purge clause renders the contempt
criminal as opposed to civil. Because criminal due process was not afforded,
the monetary sanction was reversed in Price v. Hannahs, 954 So. 2d 97 (Fla.
2d DCA 2007). See also De Castro v. De Castro, 957 So. 2d 1258 (Fla. 3d
DCA 2007).
• The quanta of proof necessary to prove contempt, as well as the punishments
available upon an adjudication of guilt, differ for criminal and civil
contempt. Demetree v. State ex rel. Marsh, 89 So. 2d 498, 501 (Fla. 1956).
• Where the fine imposed is not related to any damages suffered by the
aggrieved party, but rather is intended as punishment, the contempt is
criminal. Potential criminal contemnors are entitled to the same
constitutional due process protections afforded criminal defendants in more
typical criminal proceedings. Shook v. Alter, 729 So. 2d 527 (Fla. 4th DCA
1999).
• The trial court’s failure to follow the procedural requirements imposed by
the Florida Rules of Criminal Procedure (failure to determine indigency,
failure to allow contemnor to respond before judgment, and failure to
include recital of facts in judgment) required reversal of its judgment
holding in direct contempt of court a member of the public who caused a
Chapter One Introduction to Contempt
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courtroom disturbance at a hearing in a family member’s criminal case. Al-
Hakim v. State, 53 So. 3d 1171 (Fla. 2d DCA 2011), disapproved on other
grounds, Plank v. State, 190 So. 3d 594 (Fla. 2016). See also Turner v.
Rogers, 564 U.S. 431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011).
• Jurors may be subject to contempt for using electronic devices such as cell
phones, tablets, or the like, to find out information about a case or
communicate with anyone outside the jury about the case. In re Standard
Jury Instructions in Civil, Criminal, and Contract & Business Cases —
Jurors’ Use of Electronic Devices, 152 So. 3d 529 (Fla. 2014).
Chapter Two Criminal Contempt
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Chapter Two
Criminal Contempt
I. Direct Criminal Contempt
A. Definition
Direct criminal contempt is summary punishment for conduct that occurs in the
presence of the court. Fla. R. Crim. P. 3.830.
Circuit and county courts have jurisdiction to hear criminal contempts. Schaab v.
State, 33 So. 3d 763 (Fla. 4th DCA 2010), citing Graves v. State, 821 So. 2d 459,
460 (Fla. 2d DCA 2002) (“[c]ontempt is a common law crime in Florida, which,
although recognized by statute, is not specifically classified by statute as either a
felony or a misdemeanor”).
B. Process and Burden of Proof Overview
Direct criminal contempt must be proven beyond a reasonable doubt. Hicks on
behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988);
Braisted v. State, 614 So. 2d 639 (Fla. 4th DCA 1993). The contemnor must be
present for the criminal contempt hearing to proceed.
The due process rights of the contemnor must be protected in the adjudication
process, and rule 3.830 must be scrupulously followed. Shook v. Alter, 729 So. 2d
527 (Fla. 4th DCA 1999).
Checklist
⎯ The requisite conduct occurred in the presence of the court.
⎯ Prior to adjudication, the defendant was informed of the accusation.
⎯ Prior to adjudication, the defendant was given an opportunity to show cause
why he or she should not be found guilty of contempt.
⎯ The defendant was present at the start of the contempt hearing in compliance
with rule 3.180.
⎯ If contempt was found by the court, the defendant was given the opportunity
to present evidence of excusing or mitigating circumstances prior to
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sentencing.
⎯ If the punishment included six months or more imprisonment, a jury was
empanelled to try the facts.
⎯ The judgment was signed, entered of record, and pronounced in open court.
⎯ The written judgment of guilt included a recital of the facts.
C. Elements of Direct Contempt and Due Process
1. In General
Direct criminal contempt involves conduct that occurs in the presence of the court
that is calculated to embarrass, hinder, or obstruct the administration of justice.
Punishment is used to vindicate the authority of the court and to punish the
contemnor.
In all cases, the due process rights of contemnors must be protected, even for those
that are the most resistant to the authority of the court.
“Scrupulous compliance with rule 3.830 is required because its provisions
constitute the essence of due process.” Peters v. State, 626 So. 2d 1048, 1050 (Fla.
4th DCA 1993); see also J.A.H. v. State, 20 So. 3d 425 (Fla. 1st DCA 2009).
“The purpose of these requirements is to assure the liberty interests of even the
most refractory are protected.” Cook v. State, 636 So. 2d 895, 896 (Fla. 3d DCA
1994).
Contempt was a deprivation of due process and erroneous based on in-court
misconduct, where the attorney failed to notify the other party of bankruptcy.
Gopman v. Washington Mut. Bank, F.A., 885 So. 2d 1037 (Fla. 4th DCA 2004).
2. Conduct Requirements and Presence of the Court
Direct criminal contempt requires two elements: (1) the requisite conduct, and (2)
in the presence of the court.
Requisite Conduct – To be criminal contempt, an action must be calculated to
embarrass, hinder, or obstruct the administration of justice or to lessen the court’s
authority or dignity.
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Presence of the Court – Direct contempt occurs when the misconduct was
committed in the immediate presence of the court. J.M. v. Gargett, 101 So. 3d 352
(Fla. 2012). All of the misconduct must have taken place under the eye of the court
and have been actually observed by the court. Hash v. State, 135 So. 3d 350 (Fla.
1st DCA 2013); Roundtree v. State, 651 So. 2d 1286 (Fla. 3d DCA 1995).
Tips, Caveats, and Problems
• It was error to hold the defendant in direct criminal contempt for being
intoxicated, when the court did not see him drink alcohol or behave
inappropriately in court. Brown v. State, 226 So. 3d 369 (Fla. 2d DCA
2017).
• A defendant who has a competency evaluation and/or hearing pending
cannot be held in contempt. Elwell v. State, 61 So. 3d 1292 (Fla. 4th DCA
2011).
• Conduct that occurred before a different judge at an earlier time is not direct
criminal contempt. E.T. v. State, 587 So. 2d 615 (Fla. 1st DCA 1991).
• A failure to return to court with ordered documents, which the court
observed, may constitute criminal contempt. Young v. Wood-Cohan, 727 So.
2d 322 (Fla. 4th DCA 1999).
• A mother could not be found in direct criminal contempt for failing to
execute and return her children’s completed passport applications to their
father because her actions did not occur in the “actual presence of the court.”
Additionally, the mother could not be found in indirect criminal contempt
without following the procedures in rule 3.840, Florida Rules of Criminal
Procedure. Fiore v. Athineos, 9 So. 3d 1291 (Fla. 4th DCA 2009).
• Even if the individual knows he or she is speaking to a judge, an insult is
direct contempt only if it is made in the presence of a judge acting in the
capacity as a judge or “so near to the court or judge acting judicially as to
interrupt or hinder judicial proceedings.” Kress v. State, 790 So. 2d 1207
(Fla. 2d DCA 2001) (rude comment in elevator to judge was not
contemptuous because judge was not acting in judicial capacity).
• Use of foul language in a hallway outside a courtroom was not direct
criminal contempt since there was no evidence it was directed at the court or
intended to interrupt or hinder judicial proceedings, and because it was
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outside the actual presence of the judge. Bryant v. State, 851 So. 2d 823 (Fla.
2d DCA 2003).
• On the way into the courtroom for his delinquency hearing, a juvenile kicked
the courtroom door and, after being told not to do so by the bailiff, told the
bailiff to “Go f--k yourself.” The trial court found him guilty of direct
criminal contempt, and the appellate court affirmed. R.C. v. State, 648 So. 2d
1258 (Fla. 3d DCA1995).
• The “entire state attorney’s office” was improperly held in contempt for the
actions of three assistant state attorneys who misrepresented to the court the
readiness of the state to proceed to trial. Any potential contemptuous actions
of the other members of the office would have occurred outside the presence
of the court. In re Broward County State Attorney’s Office, 577 So. 2d 967
(Fla. 4th DCA 1991).
3. Opportunity to Show Cause
Before any adjudication of guilt, the contemnor must first be provided an
opportunity to be heard. Toby v. State, 917 So. 2d 309 (Fla. 1st DCA 2005); Tejada
v. State, 729 So. 2d 965 (Fla. 3d DCA 1999). At the hearing, the contemnor must
be given the opportunity to show cause why he or she should not be held in
contempt and to present evidence of excusing or mitigating circumstances. Wiggs
v. State, 981 So. 2d 576 (Fla. 5th DCA 2008); Bonet v. State, 937 So. 2d 209 (Fla.
3d DCA 2006); McCrimager v. State, 919 So. 2d 673 (Fla. 1st DCA 2006); Bauder
v. Florida, 923 So. 2d 1223 (Fla. 3d DCA 2006); Telfair v. State, 903 So. 2d 257
(Fla. 1st DCA 2005).
The defendant must be provided an opportunity to present evidence of excusing or
mitigating circumstance as required by rule 3.830, Florida Rules of Criminal
Procedure. Failure to provide the opportunity will result in reversal and remand for
re-sentencing. Phelps v. State, 236 So. 3d 1162 (Fla. 2d DCA 2018); Searcy v.
State, 971 So. 2d 1008 (Fla. 3d DCA 2008); Hibbert v. State, 929 So. 2d 622 (Fla.
3d DCA 2006); Honig v. Cigna Ins. Co., 687 So. 2d 922 (Fla. 2d DCA 1997).
A defendant cannot be held in direct criminal contempt for coming to court
intoxicated if he is not afforded the opportunity to present excusing or mitigating
circumstances. Garrett v. Florida, 876 So. 2d 24 (Fla. 1st DCA 2004).
Chapter Two Criminal Contempt
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The defendant must be given an opportunity to explain why there should be no
adjudication of guilt before punishment is imposed. Martin v. State, 711 So. 2d
1173 (Fla. 4th DCA 1998).
The court should avoid any comments or conduct indicating a bias or
predisposition to hold the alleged contemnor in contempt. For example, taking an
attorney into custody prior to commencement of a contempt hearing was held to
display a predisposition of the court prior to offering an opportunity to show cause.
McNamee v. State, 915 So. 2d 276 (Fla. 4th DCA 2005).
The opportunity to show cause must be full. For example, denying a contemnor the
chance to explain allegedly perjured testimony that conflicted with a prior written
statement was inappropriate. Hutcheson v. State, 903 So. 2d 1060 (Fla. 5th DCA
2005).
In the contempt proceedings, cross-examination may be required. For example,
courts should not rely on the unsworn testimony of a witness and should allow
cross-examination of that witness. Lewis v. State, 653 So. 2d 1107, 1108 (Fla. 3d
DCA 1995).
Because rule 3.830 allows the court to punish direct contempt summarily, some
courts held that appointed counsel was not required. Williams v. State, 698 So. 2d
1350 (Fla. 1st DCA 1997); but see Al-Hakim v. State, 53 So. 3d 1171 (Fla. 2d DCA
2011); Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007). In Plank v. State, 130
So. 3d 289 (Fla. 1st DCA 2014), the First District Court of Appeal certified
conflict on the issue. In Plank v. State, 190 So. 3d 594 (Fla. 2016), the supreme
court addressed the conflict, stating, in a per curiam opinion in which three justices
joined, “in accordance with the First District [in Plank] that a trial court has the
discretion, but is not required, to appoint counsel or give the individual an
opportunity to seek counsel in a direct criminal contempt proceeding, even if
incarceration is imposed as punishment, as long as the period of incarceration does
not exceed six months.” But it held that because the allegedly contemptuous
conduct “did not involve conduct that occurred only in the presence of the court,
the trial court erred in classifying the conduct as direct criminal contempt. Plank
was therefore entitled to the benefit of counsel and to the procedures set forth in
the Florida Rule of Criminal Procedure 3.840 governing indirect criminal
contempt.” For direct criminal contempt, all of the contemptuous acts must be
committed in open court and actually observed by the court. “If the judge needs to
rely on statements and testimony from others regarding their knowledge about the
contemptuous acts, the misconduct is no longer considered direct criminal
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contempt because additional testimony or explanation is necessary.” In re Oliver,
333 U.S. 257, 275–276, 68 S.Ct. 499, 92 L.Ed. 682 (1948).
Although the opinion in Plank v. State, 190 So. 3d 594 (Fla. 2016), stated that the
conflict was resolved, see Pole v. State, 198 So. 3d 961 (Fla. 2d DCA 2016), in
which the court stated: “Because Plank was a three-three decision on the right to
counsel in a direct contempt proceeding, the supreme court, apparently, did not
resolve the certified conflict between the First District in Plank and the Second and
Fourth Districts in Al–Hakim, 53 So.3d 1171; Woods, 987 So.2d 669; and Hayes,
592 So.2d 327. Because six justices concurred in an opinion concluding that Mr.
Plank’s conduct did not amount to direct criminal contempt, Plank does not require
us to dwell much longer on the conflict issue.”
4. Written Order
Because contemptuous conduct may include statements or actions that are not part
of the court proceeding and are not recorded, rule 3.830 requires that the judgment
of guilt of contempt include a recital of facts on which the adjudication of guilt is
based. Gidden v. State, 613 So. 2d 457 (Fla. 1993); Ward v. State, 908 So. 2d 1138
(Fla. 3d DCA 2005); Fetzer v. State, 723 So. 2d 907 (Fla. 1st DCA 1999). “This
requirement cannot be dismissed as merely a technical requirement.” McRoy v.
State, 31 So. 3d 273, 274 (Fla. 5th DCA 2010).
Tips, Caveats, and Problems
• Attaching transcripts of the trial is not sufficient to comply with the
requirement of rule 3.830 that the order contains a written recital of the facts.
Johnson v. State, 584 So. 2d 95, 96 (Fla. 1st DCA 1991).
• The requirement of a recitation of the facts is satisfied when the trial judge
orally states on the record the underlying facts constituting the contempt.
Gidden v. State, 613 So. 2d 457 (Fla. 1993); Neal v. State, 891 So. 2d 607
(Fla. 1st DCA 2005); Barnhill v. State, 438 So. 2d 175 (Fla. 1st DCA 1983).
• The court’s order finding the defendant in contempt “based on his
statements, demeanor, and behavior during [the] hearing, all of which was
captured on the CourtSmart audio and video system” was not a legally
sufficient order. J.A.H. v. State, 20 So. 3d 425, 427 (Fla. 1st DCA 2009).
• Purely conclusory statements will not meet the requirement of a recitation of
facts. For example, citing the contemnor’s “unjudicious, unethical and
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intemperate conduct before the court” was insufficient. Ray v. State, 352 So.
2d 110, 111 (Fla. 1st DCA 1977).
• The court’s announced holding that the defendant was in contempt for being
“generally uncooperative and disrespectful” was insufficient to support a
finding of contempt. Jensen v. Jensen, 21 So. 3d 150 (Fla. 5th DCA 2009).
D. Specific Examples of Direct Criminal Contempt
1. Erroneous Orders
A defendant may be held in criminal contempt for failing to comply with an
erroneous order if the order is entered in a matter over which the court has
jurisdiction. Robbie v. Robbie, 726 So. 2d 817 (Fla. 4th DCA 1999); Rubin v. State,
490 So. 2d 1001 (Fla. 3d DCA 1986); Vizzi v. State, 501 So. 2d 613 (Fla. 3d DCA
1986). “Only if an order is entered in a matter concerning which the court has no
jurisdiction may such an order be safely ignored.” Jamason v. State, 447 So. 2d
892, 893 (Fla. 4th DCA 1983), approved, 455 So. 2d 380 (Fla. 1984), cert. denied,
469 U.S. 1100, 105 S.Ct. 768, 83 L.Ed.2d 766 (1985).
2. Failure to Appear or Testify
Formerly, a properly subpoenaed witness who failed to appear at trial could be
held in either indirect or direct criminal contempt. Aron v. Huttoe, 258 So. 2d. 272
(Fla. 3d DCA), aff’d, 265 So. 2d 699 (Fla. 1972) (witness’s inadequately explained
absence held direct criminal contempt); Studnick v. State, 341 So. 2d 808 (Fla. 3d
DCA), cert. denied, 348 So. 2d 954 (Fla. 1977) (witness’s failure to appear held
indirect criminal contempt). But see Kelley v. Rice, 800 So. 2d 247, 253 (Fla. 2d
DCA 2001), in which the court held:
[W]e decline to follow the holdings of Speer[ v. State, 742 So. 2d 373
(Fla. 1st DCA 1999),] and Woods[ v. State, 600 So. 2d 27 (Fla. 4th
DCA 1992),] that a witness’s failure to appear in response to a
subpoena constitutes direct criminal contempt. We hold instead that if
a witness in a criminal case fails to appear in court in response to a
subpoena, that conduct may be punished, if at all, as indirect criminal
contempt in accordance with the procedures outlined in rule 3.840.
We believe that this holding is consistent with the constitutional
requirements expressed in In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92
L.Ed. 682 [1948], and with our supreme court’s more recent precedent
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addressing contempt proceedings. See Pugliese [v. Pugliese], 347 So.
2d 422 [(Fla. 1977)].
See also Smith v. State, 144 So. 3d 651, 654–655 (Fla. 2d DCA 2014), citing
Kelley and stating that contempt for failure of a subpoenaed witness to
appear could only be indirect “because the witness is not present in the
courtroom to allow for a summary proceeding and the acts that may or may
not make the nonappearance a willful contempt necessarily occurred outside
the courtroom.”
In Diaz de la Portilla v. State, 142 So. 3d 928 (Fla. 1st DCA 2014), the First
District Court of Appeal stated that “in light of the . . . uncertainty that exists
regarding Aron’s application in cases such as this one, we certify the
following question of great public importance: Whether a party who is
ordered by a trial court to appear at a scheduled hearing, but fails to do so,
may be found in direct criminal contempt under Florida Rules of Criminal
Procedure 3.830; or whether such conduct should be addressed as indirect
criminal contempt under Florida Rules of Criminal Procedure 3.840.” The
supreme court answered the certified question, stating that “the failure to
appear pursuant to an order should be treated as indirect criminal contempt
under rule 3.840.” State v. Diaz de la Portilla, 177 So. 3d 965 (Fla. 2015).
Tips, Caveats, and Problems
• Failure to appear pursuant to court order may be only indirect criminal
contempt. Id.
• The defendant’s unrebutted testimony that his attorney told him he need not
attend the hearing rendered insufficient the evidence that his failure to
appear was willful. Carter v. State, 954 So. 2d 1185 (Fla. 4th DCA 2007).
• Failure to appear at a mediation hearing can only constitute indirect criminal
contempt, since a mediation hearing is outside the presence of the court.
Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992).
• Refusal to testify in a trial on the ground that the contemnor’s attorney told
him his testimony could be used in federal charges against him was still
contempt. A post-conviction motion is the proper vehicle to assert that
misadvice by a former attorney, advising the witness not to testify,
constituted ineffective assistance of counsel. Hagen v. State, 898 So. 2d 977
(Fla. 5th DCA 2005).
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• It is appropriate in sentencing to consider that the contemnor was acting
under the erroneous advice of counsel. Studnick v. State, 341 So. 2d 808
(Fla. 3d DCA), cert. denied, 348 So. 2d 954 (Fla. 1977) (punishment was
reduced on appeal from 10 days in county jail to one day).
3. Perjury
A defendant may be held in direct criminal contempt for perjury when his or her
testimony is diametrically opposite to the testimony the defendant gave at the time
of plea. Roberts v. State, 515 So. 2d 434 (Fla. 5th DCA 1987).
Tips, Caveats, and Problems
• A court may not hold a person in criminal contempt simply because the
judge believes one witness over another. More is needed to establish judicial
knowledge that a witness’s testimony is false for the purpose of direct
criminal contempt for perjury. Rhoads v. State, 817 So. 2d 1089 (Fla. 2d
DCA 2002), citing Emanuel v. State, 601 So. 2d 1273 (Fla. 4th DCA 1992).
• A prospective juror may be held in direct criminal contempt for failing to
disclose criminal history during jury selection. Forbes v. State, 933 So. 2d
706 (Fla. 4th DCA 2006).
4. Drug Use
To be held in direct criminal contempt, the contemnor should be under the
influence of the substance in the presence of the court. For example, merely
admitting to having smoked marijuana earlier in the week, without evidence that
the defendant was under the influence in court “such that his conduct was
disruptive of court proceedings or that his faculties were impaired,” was held not to
be direct criminal contempt in M.W. v. Lofthiem, 855 So. 2d 683, 685 (Fla. 2d
DCA 2003).
A defendant who passed out in court because he “had a little coke” that morning
was properly held in direct criminal contempt. See Miller v. State, 672 So. 2d 95
(Fla. 3d DCA 1996).
5. Profanity or Disrespectful Conduct
Use of profanity to a judge justifies direct criminal contempt. Other verbal conduct
may or may not, depending on the circumstances. Saunders v. State, 319 So. 2d
118 (Fla. 1st DCA 1975).
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Tips, Caveats, and Problems
• One continuous outburst has been held to be punishable as only one
contempt. Williams v. State, 222 So. 3d 596 (Fla. 4th DCA 2017); Williams
v. State, 599 So. 2d 255 (Fla. 1st DCA 1992); Ricci v. State, 549 So. 2d 1186
(Fla. 2d DCA 1989).
• The trial court’s admonishment to an attorney not to be “dramatic” was not
sufficiently specific to apprise the attorney of the behavior to be enjoined.
Braisted v. State, 614 So. 2d 639 (Fla. 4th DCA 1993).
• Where the court had given no prior warnings or explicit directions not to
display reaction to verdict, an attorney who pounded his fist and yelled “yes”
upon receiving a favorable verdict could not be held in contempt. Berman v.
State, 751 So. 2d 612 (Fla. 4th DCA 1999).
• A juror may be held in direct criminal contempt if there is competent
evidence to suggest the juror has purposefully changed his or her answer to
reflect bias and prejudice in order to manipulate jury selection. Gruss v.
State, 869 So. 2d 770 (Fla. 4th DCA 2004).
• Use of the single word “sh--” uttered in frustration while the defendant was
leaving the courtroom, without further developed record, did not constitute
contempt. Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007), disapproved
on other grounds, Plank v. State, 190 So. 3d 594 (Fla. 2016) (isolated
remark will be considered contemptuous only if it constitutes imminent
threat to administration of justice).
• A cellular phone ringing during a courtroom proceeding is direct criminal
contempt only if tends to “embarrass, hinder, or obstruct the court in the
administration of justice or lessen the court’s authority or dignity.” McRoy v.
State, 31 So. 3d 273, 274 (Fla. 5th DCA 2010).
• The court in Davila v. State, 100 So. 3d 262 (Fla. 3d DCA 2012), reversed a
six-month sentence for direct criminal contempt where the defendant spoke
a profanity under his breath that was not audible to the court. The
administration of justice was not hindered, nor had the defendant intended to
hinder it.
• In Michaels v. Loftus, 139 So. 3d 324 (Fla. 3d DCA 2014), the attorney, who
had had prior warnings from the judge about his behavior, was held in direct
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criminal contempt for mumbling to opposing counsel what he said were
obscene words in Romanian.
6. Questioning by Attorney in Violation of Court Order
An attorney may be held in direct criminal contempt for violating a court order in
the court’s presence. For example, questioning a witness in violation of a court
order was properly held as contempt. Vizzi v. State, 501 So. 2d 613 (Fla. 3d DCA
1986).
Making continuous speaking objections despite judicial admonishment was held to
be contempt. Michaels v. State, 773 So. 2d 1230 (Fla. 3d DCA 2000).
An attorney was found in contempt when he asked the defendant’s expert witness a
question he was specifically told by the court not to ask. Botwinick v. State, 793
So. 2d 56 (Fla. 3d DCA 2001).
E. Punishments
1. Fines and Sanctions
A fine for direct criminal contempt cannot exceed $500. § 775.02, Fla. Stat.
Awarding attorney’s fees for another party or the court’s wasted time is improper.
Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992).
Tips, Caveats, and Problems
• While imposing a fine on an attorney held in contempt is permissible,
requiring that the attorney have co-counsel when representing clients in
criminal cases, thereby restricting the attorney’s practice of law, is improper.
Gifford v. Payne, 432 So. 2d 38 (Fla. 1983).
• Not all conceivable punishments are permissible. For example, requiring an
attorney to write 1,000 times “I will not disobey the direct order of a judge”
as a direct criminal contempt sanction is improper. Ward v. State, 354 So. 2d
438 (Fla. 3d DCA 1978).
• Florida law does not contain a provision for a sentence “at hard labor,” and it
was error to include this language in a sentencing order. McCrimager v.
State, 919 So. 2d 673 (Fla. 1st DCA 2006).
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• A sentence of six months in jail with a special condition of “no phone,
family or contact visits, exercise, television, library or commissary” was
error. The trial court lacks the authority to regulate the treatment of inmates,
including inmates at county jail. Cuesta v. State, 929 So. 2d 648, 649 (Fla.
3d DCA 2006).
2. Incarceration
Criminal contempt is a crime in the ordinary sense, Parisi v. Broward County, 769
So. 2d 359 (Fla. 2000); however, it is neither a felony nor a misdemeanor.
Giordano v. State, 32 So. 3d 96 (Fla. 2d DCA 2009); Saridakis v. State, 936 So. 2d
33 (Fla. 4th DCA 2006); Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA
1997). The maximum punishment that can be imposed for direct criminal contempt
is one year. § 775.02, Fla. Stat. However, any punishment of more than six months
requires a jury trial before imposition. Aaron v. State, 345 So. 2d 641 (Fla. 1977),
cert. denied, 434 U.S. 868, 985 S.Ct. 208, 54 L.Ed.2d 146.
Tips, Caveats, and Problems
• A sentence of six months or less may be properly imposed upon conviction
without a trial by jury. McCrimager v. State, 919 So. 2d 673 (Fla. 1st DCA
2006); Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976), approved,
346 So. 2d 68.*
* In an abundance of caution, it is recommended that any sentence imposed
without a jury trial be for no more than 179 days.
• A sentence of contempt is illegal if entered consecutively to a sentence that
is yet to be imposed. Ward v. State, 908 So. 2d 1138 (Fla. 3d DCA 2005).
F. Sample Direct Criminal Contempt Colloquy
TO THE CONTEMNOR:
THE COURT: (a) I have ordered you not to ............... (state specifically
what the contemnor has been ordered not to do); or
(b) You have been ordered to ............... (state specifically
what the contemnor has been ordered to do); or
(c) You have done the following in my presence: ...............
(state specifically what the contemnor has done).
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THE COURT: Despite this order, you ............... (state specifically what was
done or not done in violation of the order).
THE COURT: Do you have any cause to show why you should not be
adjudicated guilty of contempt by the court and sentenced
therefore?
IF THE EXPLANATION IS UNSATISFACTORY:
THE COURT: The court hereby finds you in contempt and adjudicates you
guilty of direct criminal contempt.
THE COURT: Prior to sentencing, do you have any evidence of excusing or
mitigating circumstances which you would like to present to the
court?
IF NOTHING IS PRESENTED WHICH AFFECTS YOUR SENTENCING:
THE COURT: You are hereby sentenced to (less than six months) and/or (up
to $500) fine and/or other sanctions, including probation.
Pronounce sentence in open court, write order with specific findings of fact, sign
order, and enter of record.
II. Indirect Criminal Contempt
A. Definition
Indirect criminal contempt is conduct that occurs outside the presence of the judge,
and that is intended to constitute “a clear and present danger to the orderly
administration of justice. . . . [W]hether speech constitutes a clear and present
danger is measured not by the content of the remark but by the impact on judicial
action.” Wasserman v. State, 671 So. 2d 846, 848 (Fla. 2d DCA 1996). See also
Gidden v. State, 613 So. 2d 457 (Fla. 1993); Pugliese v. Pugliese, 347 So. 2d 422
(Fla. 1977); Via v. State, 633 So. 2d 1198 (Fla. 2d DCA 1994).
Tips, Caveats, and Problems
• “[T]he substantive evil” constituting the contemptuous act “must be
extremely serious and the degree of imminence extremely high before
utterances can be punished.” Wasserman v. State, 671 So. 2d 846, 848 (Fla.
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2d DCA 1996), quoting Bridges v. State of Cal., 314 U.S. 252, 263, 62 S.Ct.
190, 86 L.Ed. 192 (1941).
• For example, after losing a civil case, the defendant, in the hallway outside
the court, called counsel for the plaintiff a “f-cking c--t” and threatened her
by saying he would “see her later.” The profane name-calling was not
indirect criminal contempt, but the threatening of the attorney, an officer of
the court, justified a finding of contempt. Hoeffer v. State, 696 So. 2d 1265
(Fla. 4th DCA 1997).
B. Process and Burden of Proof Overview
Indirect criminal contempt, like direct criminal contempt, must be proved beyond a
reasonable doubt. Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA 1998).
Because the conduct occurs outside the presence of the court, summary disposition
is not available in indirect criminal contempt proceedings. Fredericks v. Sturgis,
598 So. 2d 94 (Fla. 5th DCA 1992). A defendant must be present in order for a
criminal contempt proceeding to take place. May v. South Florida Water
Management Dist., 866 So. 2d 205 (Fla. 4th DCA 2004).
Tips, Caveats, and Problems
• Placing the burden to move forward on the defendant and not requiring
proof beyond a reasonable doubt violates a defendant’s due process rights.
Tide v. State, 804 So. 2d 412 (Fla. 4th DCA 2001).
• Where the contemnor claims an inability to comply with a court order,
however, the burden of proving the inability is on the contemnor and must
be proven by a preponderance of the evidence. Florida Dept. of Health and
Rehabilitative Services v. State, 616 So. 2d 66 (Fla. 1st DCA 1993).
• A parent cannot be held in civil contempt for failure to abide by a rotating
custody arrangement when the child becomes a legal adult, unless the child
is legally declared incapacitated or incompetent. Gamache v. Gamache, 14
So. 3d 1236 (Fla. 2d DCA 2009).
• Where the mother and father lived 500 miles from each other and weekend
visitation as ordered by the court was impractical, the proper course was for
the parties to seek a modification of the judgment. An order of the court
must be followed. However, the evidence was insufficient to establish that
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the father was in contempt of court. Doherty v. Padgett, 942 So. 2d 464 (Fla.
2d DCA 2006).
• If the judge has good reason to believe the defendant will not attend the
contempt hearing, the proper procedure is to issue a warrant for the
defendant’s arrest or a writ of bodily attachment. Fla. R. Crim. P. 3.840(c).
• The defendant must be given a reasonable time to prepare a defense. Two
days’ notice of the hearing is insufficient. Woolf v. Woolf, 901 So. 2d 905
(Fla. 4th DCA 2005); Goral v. State, 553 So. 2d 1282 (Fla. 3d DCA 1989).
Checklist
⎯ The conduct occurred outside the presence of the court.
⎯ The conduct, through its impact on judicial action, was a clear and present
danger to the orderly administration of justice.
⎯ The defendant was given notice of the hearing prior to its occurring and
given more than two days to prepare a defense.
⎯ The order to show cause contained specific allegations as to the alleged
contempt.
⎯ The defendant was actually present at the start of the hearing or an exception
in rule 3.180(c) existed.
⎯ The defendant was given an opportunity to present mitigating evidence.
⎯ The defendant was not sentenced to more than one year, and if six months or
more were imposed, a jury was empanelled to try the facts.
⎯ The defendant was not fined more than $500.
⎯ The proceedings were reported like any other criminal proceeding and the
order contained a written recital of facts constituting the underlying
contempt.
C. Elements and Due Process
1. In General
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Proceedings for indirect criminal contempt are effectively criminal in nature and,
therefore, an accused contemnor is entitled to the same basic constitutional due
process protections afforded to criminal defendants. Andrews v. Walton, 428 So. 2d
663, 666 (Fla. 1983) (citing Aaron v. State, 284 So. 2d 673, 675 (Fla. 1973)); De
Castro v. De Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007); Van Hare v. Van Hare,
870 So. 2d 125 (Fla. 4th DCA 2003).
A contemnor has a constitutional right not to incriminate himself or herself. It was
reversible error for the court to require the contemnor to explain why he had failed
to comply with a court order. Harvey v. State, 32 So. 3d 61 (Fla. 2d DCA 2008).
2. Conduct
Outside the Presence of Court – The conduct must have occurred outside the
presence of the court to constitute indirect criminal contempt. Wasserman v. State,
671 So. 2d 846 (Fla. 2d DCA 1996).
Clear and Present Danger – To constitute indirect criminal contempt, the conduct
must pose a “clear and present danger to the orderly administration of justice.” Id.
at 848. Whether the speech meets this standard is measured by the impact on the
judicial action, not the content of the speech.
Intent – Intent is an essential element of indirect criminal contempt. Power Line
Components, Inc. v. Mil-Spec Components, Inc., 720 So. 2d 546 (Fla. 4th DCA
1998). The intent to commit contempt may be inferred from the actions of the
contemnor. Intent necessary for indirect criminal contempt could be inferred from
the assistant state attorney’s act of engaging in an altercation with opposing
counsel in the courthouse hallway in the presence of several people, including a
juror. Milian v. State, 764 So. 2d 860 (Fla. 4th DCA 2000).
Tips, Caveats, and Problems
• Mere utterances are not generally punishable unless the “substantive evil” is
“extremely serious and the degree of imminence extremely high.”
Wasserman v. State, 671 So. 2d 846, 848 (Fla. 2d DCA 1996), quoting
Bridges v. State of Cal., 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192
(1941).
• Defendants cannot be found in contempt for late appearance caused by the
breakdown of their automobile, because intent is lacking. Werner v. State,
740 So. 2d 591 (Fla. 5th DCA 1999).
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• Where a finding of intent is supported by the facts, the court may conclude
that the offensive behavior was “willful” and “calculated to hinder the
orderly functions of the court.” Mann v. State, 476 So. 2d 1369, 1374 (Fla.
2d DCA 1985).
• Merely stating that he or she did not mean to be contemptuous when
violating the court’s direct order does not change the result. Vizzi v. State,
501 So. 2d 613, 619 (Fla. 3d DCA 1986).
• The judge’s underlying order that the sheriff was to permanently assign three
competent bailiffs to his courtroom could not be the basis for holding the
chief court deputy in contempt where, due to insufficient personnel, the chief
had to borrow detention deputies to help out in the courtroom. There was
insufficient evidence of intent to violate the court order. Dougherty v. State,
550 So. 2d 542 (Fla. 4th DCA 1989).
• Indirect criminal contempt conviction reversed where there was no evidence
that the prisoner’s signing of the judge’s name to an order was done with the
intent to embarrass, hinder, or obstruct the court in the administration of
justice or was calculated to lessen the court’s authority or dignity. McCoy v.
State, 930 So. 2d 811 (Fla. 4th DCA 2006).
• It was not error for the trial court to find the defendant guilty of indirect
criminal contempt for filing false documents in his dissolution of marriage
case after he intentionally underrepresented his income in sworn documents
filed with the court. Haeussler v. State, 100 So. 3d 732 (Fla. 2d DCA 2012).
• A juvenile who was 15 minutes late to court could not be held in contempt,
as he “lacked control over his arrival time” and the evidence did not show
willfulness. K.D.K. v. State, 120 So. 3d 229 (Fla. 4th DCA 2013).
3. Order to Show Cause and Opportunity to Show Cause
“An order to show cause is the charging document in a criminal contempt
proceeding, just as an information is the charging document in a criminal case.”
Martin v. Pinellas County, 483 So. 2d 445, 447 (Fla. 2d DCA 1986).
“[T]he indirect criminal contempt process requires that all procedural aspects of
the criminal justice process be accorded a defendant, including an appropriate
charging document, an answer, an order of arrest, the right to bail, an arraignment,
and a hearing.” Gidden v. State, 613 So. 2d 457, 460 (Fla. 1993). See also Fla. R.
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Crim. P. 3.840(g); Ensign v. State, 67 So. 3d 353 (Fla. 2d DCA 2011); Martinez v.
State, 976 So. 2d 1222 (Fla. 4th DCA 2008).
The order to show cause must be based on a sworn motion. It can be initiated by
the judge sua sponte or on an affidavit of any person having knowledge of the
facts. Fla. R. Crim. P. 3.840(a); Cone v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA
2003); Paris v. Paris, 427 So. 2d 1080 (Fla. 1st DCA 1983).
An order to show cause must contain specific allegations for which the defendant
must answer. Fla. R. Crim. P. 3.840(a); Mendana v. Mendana, 911 So. 2d 130 (Fla.
3d DCA 2005).
The accused must be advised of the charge and then afforded an opportunity to
defend himself or herself. Dykes v. Dykes, 104 So. 2d 598, 599 (Fla. 3d DCA
1958).
“The order shall specify the time and place of the hearing, with a reasonable time
allowed for preparation of the defense after service of the order.” Fla. R. Crim. P.
3.840(a). See also Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005) (two days
insufficient); Fox v. State, 490 So. 2d 1288 (Fla. 5th DCA 1986) (six hours
insufficient).
In Walker v. State, 946 So. 2d 130 (Fla. 5th DCA 2007), the evidence was
insufficient to establish that the defendant sent text messages to the victim in
violation of an injunction. Thus, the contempt conviction was reversed.
Tips, Caveats, and Problems
• An opportunity to show cause includes “the opportunity to be represented by
counsel and to testify and present relevant evidence of witnesses, going not
only to the facts of the charge itself but to matters of excuse therefrom and
of extenuation and mitigation.” Dykes v. Dykes, 104 So. 2d 598, 599 (Fla. 3d
DCA 1958).
• The defendant may be entitled to court-appointed counsel. Fla. R. Crim. P.
3.111(b)(1); Gidden v. State, 613 So. 2d 457 (Fla. 1993). However, counsel
need not be provided if the judge, prior to trial, files in the cause a statement
in writing that the defendant will not be imprisoned in the event of
conviction. See § 27.512, Fla. Stat.
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• Due process also requires that the defendant be allowed to make a closing
argument. Feltner v. Columbia Pictures Television, Inc., 789 So. 2d 453
(Fla. 4th DCA 2001).
• A procedure whereby the court determined the defense would be heard first,
since the court already had a sworn affidavit upon which it issued an order to
show cause, impermissibly shifted the burden of proof to the defendant and
constituted denial of due process. McAtee v. State, 899 So. 2d 1245 (Fla. 4th
DCA 2005).
• In Luzenberg v. Forand, 929 So. 2d 546 (Fla. 2d DCA 2006), the court
found the defendant in indirect criminal contempt but sentenced him to jail
with a purge provision. After realizing the purge provision actually made the
contempt order one of indirect civil contempt, the court entered an amended
judgment deleting the purge provision and sentencing the defendant to jail.
Since changing the complete nature of the judgment falls outside a
scrivener’s error or clerical mistake, the contempt conviction was reversed.
• No objection is required when an order to show cause is not based on a
sworn affidavit that contains the essential facts constituting the charged
criminal contempt. Such an order is legally insufficient. Mix v. State, 827 So.
2d 397 (Fla. 2d DCA 2002); see also Cone v. Gillson, 861 So. 2d 1210 (Fla.
2d DCA 2003).
• An order to show cause provides the required notice so long as the order is
sufficiently clear and precise to inform the party of its command and
direction, including advising the defendant of the possibility of criminal
penalties. J.M.P.U. v. State, 858 So. 2d 389 (Fla. 3d DCA 2003); Hagerman
v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000); Zelman v. State, 666 So.
2d 188, 190 (Fla. 2d DCA 1995); Amerivend Corp. v. West Dade Ltd., 627
So. 2d 1258 (Fla. 3d DCA 1994).
• Rule 3.840(a), Florida Rules of Criminal Procedure, mandates that a
reasonable time be allowed for preparation of the defense after service of the
show cause order on the defendant. Russ v. State, 622 So. 2d 501 (Fla. 5th
DCA 1993).
• Failure to issue an order to show cause apprising the defendant of the
charges against him or her is fundamental error. Corneal v. KW Palms Ltd.
Partnership, 673 So. 2d 193 (Fla. 3d DCA 1996).
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4. Written Order
A criminal contempt proceeding must be reported like any other criminal
proceeding. Adjudication of contempt must be reversed where “the final hearing
was not reported and [the defendant] has presented a facially sufficient claim of
error that cannot be refuted by the record.” Schmidt v. Hunter, 788 So. 2d 322 (Fla.
2d DCA 2001); see also Conley v. Cannon, 708 So. 2d 306 (Fla. 2d DCA 1998).
The order reporting the contempt must contain written findings of fact underlying
the charged contempt. Ward v. State, 908 So. 2d 1138 (Fla. 3d DCA 2005); Fetzer
v. State, 723 So. 2d 907 (Fla. 1st DCA 1999). Orally reciting these facts on the
record satisfies the recital of facts requirement. Gidden v. State, 613 So. 2d 457
(Fla. 1993).
Tips, Caveats, and Problems
• A scrivener’s error that mislabels the type of contempt the judge imposed
should be remanded to the trial court to be corrected. Graves v. State, 872
So. 2d 298 (Fla. 2d DCA 2004).
5. Disqualification of Judge
A judge must disqualify himself or herself if the contempt charged involved
disrespect to or criticism of that judge. Bumgarner v. State, 245 So. 2d 635 (Fla.
4th DCA 1971). However, it must be personal disrespect for that judge, not just
obstruction of the court in its administration of justice, to trigger disqualification.
Lowe v. State, 468 So. 2d 258 (Fla. 2d DCA 1985). Additionally, a judge need not
recuse simply because the contempt was committed against that judge or against a
court of which he or she is a member. Bryant v. State, 363 So. 2d 1141 (Fla. 1st
DCA 1978). Neither is a judge generally disqualified merely because he or she
initiated the contempt proceedings. Id.
6. Double Jeopardy
“[A] later criminal prosecution for the same conduct which gave rise to a criminal
contempt prosecution can violate a defendant’s double jeopardy rights.” McCray v.
State, 640 So. 2d 1215, 1217 (Fla. 5th DCA 1994) (citing U.S. v. Dixon, 509 U.S.
688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993)).
However, a defendant held in contempt for violating a domestic violence
injunction may be prosecuted later for a substantive offense stemming from the
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same conduct. Williams v. State, 658 So. 2d 665 (Fla. 4th DCA 1995), approved,
673 So. 2d 486 (Fla. 1996).
The sole test to be applied is the “same elements” test under Blockburger v. United
States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which provides that “[i]f
each offense requires proof of an element that the other does not, the offenses are
separate and double jeopardy does not apply.” State v. Miranda, 644 So. 2d 342,
344 (Fla. 2d DCA 1994).
“Double jeopardy protections pertain upon [criminal] contempt. . . . However,
double jeopardy does not necessarily preclude a separate criminal prosecution for
felony battery. . . . Because the contempt adjudication did not require a prior
battery conviction, and the felony battery does not require the existence or
knowledge of an injunction order, the contempt and the felony battery each require
proof of an element the other does not and neither offense is entirely subsumed
within the other.” State v. Rothwell, 981 So. 2d 1279, 1280–1281 (Fla. 1st DCA
2008).
7. Purge Provisions
A purge provision is not required in a proceeding for indirect criminal contempt.
Contella v. Contella, 589 So. 2d 325, 326 (Fla. 5th DCA 1991).
D. Specific Examples of Indirect Criminal Contempt
1. Threat
Profane name-calling is not indirect criminal contempt, but a threat to or
intimidation of an attorney who is an officer of the court justifies a finding of
contempt. Hoeffer v. State, 696 So. 2d 1265 (Fla. 4th DCA 1997).
2. Support Obligations
“Criminal contempt proceedings are appropriate when . . . the party in default has
continually and willfully neglected his support obligations, or has affirmatively
acted to divest himself of assets and property.” Bowen v. Bowen, 471 So. 2d 1274,
1279 (Fla. 1985). It is improper to find a party in contempt for failure to pay an
equitable distribution obligation. Williams v. Williams, 958 So. 2d 992 (Fla. 5th
DCA 2007).
3. Unclear or Erroneous Orders
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Failure to comply with even an erroneous order constitutes contempt so long as the
court has jurisdiction over the matter. Soven v. State, 622 So. 2d 1123 (Fla. 3d
DCA 1993); McQueen v. State, 531 So. 2d 1030 (Fla. 1st DCA 1988).
However, a party cannot be held in contempt for violating an order that does not
sufficiently apprise the party of what he or she is required to do. Marcus v.
Marcus, 902 So. 2d 259 (Fla. 4th DCA 2005); Rouse v. Rouse, 595 So. 2d 1013
(Fla. 2d DCA 1992).
4. Contacting Juror
An attorney who contacted a juror to obtain her medical records, after the juror was
excused due to a medical condition and the court denied the attorney’s request to
obtain the records, willfully undermined the court’s order and thus was in indirect
criminal contempt. Alan v. State, 39 So. 3d 343 (Fla. 1st DCA 2010).
Tips, Caveats, and Problems
• An order to return “jewelry” was too vague. Lubin v. Schumer, 593 So. 2d
599 (Fla. 3d DCA 1992).
• “[I]f a court order . . . is too general and appears too burdensome and
uncertain in its scope the aggrieved parties should petition the court for
modification, clarification or construction of the order, and if they fail to do
so, they act at their own peril.” Zelman v. State, 666 So. 2d 188, 190 (Fla. 2d
DCA 1995) (quoting Kranis v. Kranis, 313 So. 2d 135, 139 (Fla. 3d DCA
1975)).
E. Punishments
1. Fines
Fines for indirect criminal contempt are distinct from fines for indirect civil
contempt in that there is no opportunity to reduce or avoid the amount of a fine
through compliance for indirect criminal contempt. Kimball v. Yaratch, 787 So. 2d
97 (Fla. 2d DCA 2001).
Indirect criminal contempt fines must not exceed $500. Kramer v. State, 800 So.
2d 319 (Fla. 2d DCA 2001); § 775.02, Fla. Stat.
2. Incarceration
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Indirect criminal contempt is punishable by up to one year of imprisonment under
section 775.02, Florida Statutes. However, if six months or more are imposed, the
accused is entitled to a jury trial. Wells v. State, 654 So. 2d 146 (Fla. 3d DCA
1995).
A defendant may be denied a jury trial for contempt only if the punishment is
limited to less than six months of incarceration upon conviction. Aaron v. State,
284 So. 2d 673 (Fla. 1973). The sanction of house arrest for a runaway minor who
refused to comply with court orders is criminal, not civil, contempt because the
sanction is for a definite period of time and there is no purge provision. D.L. by
and through Reid v. Parents of D.L., 29 So. 3d 461 (Fla. 4th DCA 2010).
3. Order of Contempt
“There should be included in a judgment of guilty a recital of the facts constituting
the contempt of which the defendant has been found and adjudicated guilty.” Fla.
R. Crim. P. 3.840(f); Martinez v. State, 976 So. 2d 1222, 1232 (Fla. 4th DCA
2008).
An order that finds a factual basis for indirect criminal contempt but does not grant
or deny the motion for contempt is a non-final order which is not subject to appeal.
Sutton v. Amerson, 922 So. 2d 391 (Fla. 1st DCA 2006).
It is error to enter “a hybrid order which had some characteristics of criminal
contempt and some characteristics of a civil contempt order.” Montello v.
Montello, 937 So. 2d 1154, 1155 (Fla. 3d DCA 2006), approved, 961 So. 2d 257
(Fla. 2007).
An order to show cause must state “the essential facts constituting the criminal
contempt charged and requir[e] the defendant to appear before the court to show
cause why the defendant should not be held in contempt of court.” Fla. R. Crim. P.
3.840(a); see also Hill v. State, 643 So. 2d 1178 (Fla. 2d DCA 1994).
Written findings of fact are not required for indirect criminal contempt where
sufficient oral findings are on the record. Gidden v. State, 613 So. 2d 457 (Fla.
1993); Neal v. State, 891 So. 2d 607 (Fla. 1st DCA 2005).
F. Right to Counsel
An indirect criminal contempt proceeding must fully comply with rule 3.840,
Florida Rules of Criminal Procedure, and the defendant may be entitled to court-
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appointed counsel. Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); Zelman v. State,
666 So. 2d 188 (Fla. 2d DCA 1995).
The trial court may allow opposing counsel to assist the court in presenting a
contempt case, but counsel must not abuse the position. Gordon v. State, 967 So.
2d 357 (Fla. 4th DCA 2007).
G. Sample Forms
1. Motion for Order to Show Cause
IN THE CIRCUIT COURT OF THE
__________ JUDICIAL CIRCUIT
IN AND FOR ____________
COUNTY, FLORIDA
DIVISION
CASE NO.:
IN RE:
Petitioner/Plaintiff,
vs.
Respondent/Defendant.
_______________________________/
MOTION FOR ORDER TO SHOW CAUSE
Petitioner, ______________________________, shows to the Court:
1. On the ____ day of _______________, 20___, this Honorable Court
entered its Order requiring Respondent to perform/not perform the following acts:
A copy of that Order is attached as Exhibit A.
2. Said Order has been in full force and effect since its entry and a copy
thereof was served upon Respondent on the ____ day of _______________,
20___, who at all times has had knowledge of its terms.
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3. Respondent has failed and refused to comply with and has disobeyed
and disregarded the provisions of said Order by the following acts of conduct:
This conduct as more particularly described and attested to by the sworn
Affidavit[s] of __________________________, which are attached as Exhibit B
[C].
4. By reason of Respondent’s failure to comply with the aforesaid
provisions of this Court’s Order, Respondent has committed an indirect criminal
contempt of the authority of this court.
WHEREFORE Petitioner moves this Court for an Order requiring
Respondent to appear and show cause why he/she should not be judged in Indirect
Criminal Contempt of this Court and for an Order adjudging Respondent to be in
Indirect Criminal Contempt of Court for violation of the terms of said Order and
for such punishment as this Court may deem to be just and proper.
Petitioner
AFFIDAVIT
STATE OF FLORIDA
COUNTY OF
BEFORE ME, the undersigned authority, personally appeared Petitioner,
____________________, who after being duly sworn on oath deposes and says:
1. That Affiant is the Petitioner in __________ County Circuit Court,
Case No. ____________________ CA ( ).
2. That Respondent has willfully failed and refused to comply with this
Court’s Order [Injunction] and has willfully refused and failed to comply with said
Order by the following acts of conduct:
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Affiant/Petitioner
SWORN TO and subscribed before me this ____ day of __________________,
20___, by .
NOTARY PUBLIC or DEPUTY CLERK
{Print, type, or stamp commissioned name
of notary or clerk.}
_____ Personally known
_____ Produced identification
Type of identification produced ____________________
I certify that a copy of this document was ( ) mailed ( ) faxed and mailed ( )
e-mailed ( ) hand delivered to the person(s) listed below on {date} .
Other party or his/her attorney:
Name: _______________________________________
Address: ______________________________________
City, State, Zip: _________________________________
Fax Number: ___________________________________
Designated E-mail Address(es): ____________________
______________________________________________
2. Order to Show Cause
IN THE CIRCUIT COURT OF THE
__________ JUDICIAL CIRCUIT IN
AND FOR ____________
COUNTY, FLORIDA
DIVISION
CASE NO.:
IN RE:
Petitioner/Plaintiff,
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vs.
Respondent/Defendant.
_______________________________/
ORDER TO SHOW CAUSE
Upon consideration of the attached sworn affidavit filed with the Court by the
Petitioner/Plaintiff in this cause and upon review of this Court’s Order, entered on
the ____ day of _______________, 20___, this Court finds:
That the attached Order enjoined Respondent/Defendant from performing
any of the following acts:
(Specify what acts)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
Furthermore, said Order affirmatively ordered Respondent/Defendant to
perform the following acts:
(Specify what acts)
Said Order was served upon Respondent/Defendant on the ____ day of
_______________, 20___, return being made to this Court on the ____ day of
_______________, 20___.
Petitioner has petitioned this Court for an Order adjudging Respondent/
Defendant to be in Indirect Criminal Contempt of Court for the willful disregard
and disobedience of the provisions of this Court’s Order by engaging in the
following acts of conduct:
(Specify what acts)
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Now, therefore, it is ORDERED AND ADJUDGED that said Respondent/
Defendant shall appear before this Court on the ____ day of _______________,
20___, at __________m., in Room ______, at the following location:
(allow at least ten (10) days for service after order is signed) to be arraigned and
then and there show cause why he/she should not be held in and punished for
indirect criminal contempt of Court, pursuant to rule 3.840, Florida Rules of
Criminal Procedure, for his/her willful failure to comply with the terms of the
above Order. Such punishment, if imposed, may include a fine and/or incarceration
or probation.
Should the Court determine, based on the evidence presented at the hearing,
that Respondent’s conduct warrants sanctions for civil contempt in addition to or
instead of indirect criminal contempt, the Court reserves the right to find
Respondent guilty of civil contempt and impose appropriate civil sanctions.
As the Respondent/Defendant, you have a right to be represented by an
attorney.
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 Sheriff of ________________ County, Florida, is hereby ordered to
serve a copy of this Order on the Respondent/Defendant, ____________________,
and to make a return showing such service.
DONE AND ORDERED at _________, ______________ County, Florida,
this ____ day of _______________, 20___.
CIRCUIT COURT JUDGE
3. Writ of Bodily Attachment
IN THE CIRCUIT COURT OF THE
__________ JUDICIAL CIRCUIT
IN AND FOR ____________
COUNTY, FLORIDA
DIVISION
CASE NO.:
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IN RE:
Petitioner/Plaintiff,
vs.
Respondent/Defendant.
_______________________________/
WRIT OF BODILY ATTACHMENT
STATE OF FLORIDA
TO EACH SHERIFF OF THE STATE
YOU ARE HEREBY COMMANDED to attach and take into custody the
body of the Respondent, ______________________________, and bring said
Respondent personally before the Honorable ______________________________,
or, in his/her absence, before any of the other Judges of the Circuit Court, in
Chambers, Room No. ______, __________ County Courthouse, (address),
instanter, for the following reason(s): (check appropriate box)
[ ] To answer Respondent’s failure to appear at a hearing for contempt on
the ____ day of ______________, 20___, of which Respondent was duly noticed;
and/or
[ ] (Other)
DIRECTIONS TO SHERIFF
This Writ shall be promptly served and executed between the hours of 8:00
a.m. and 3:00 p.m., Monday through Friday (legal holidays excluded), and shall
expire and terminate if not served sixty (60) days from the date of this Order. In
rare instances when the Respondent is taken into custody during normal court
hours but cannot, after diligent effort, be brought before a Judge of the Court on
the same date this Writ is served, said Respondent may be confined in the
__________ County Jail until the earliest possible time that he/she can be brought
before the court. However, Respondent may secure release pursuant to the
conditions specified below.
(Check if applicable)
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[ ] There is reason to believe that Respondent is not subject to attachment
during the above hours. Accordingly, Respondent may be confined in the
__________ County Jail until the earliest possible time that Respondent can be
brought before the aforesaid Judge, or, in his/her absence, before any of the other
Judges of the Circuit Court, for the reasons specified herein. However, Respondent
may secure release pursuant to the conditions specified below.
Upon execution of this Writ, the sheriff shall promptly notify, by telephone,
the following:
(Specify name and telephone number of person to be notified).
[ ] Respondent shall be released by depositing a cash or security bond with
the Clerk of Court in the sum of $________ to ensure his/her physical presence in
court when required, and/or __________________________________________.
(Specify other conditions of recognizance).
INFORMATION SHEET TO BE COMPLETED BY COUNSEL
Address of Respondent:
Race:
Sex:
(Home address)
DOB:
SS#:
(Business address)
Hair:
(Telephone number) Eyes:
Height:
Weight:
Nicknames:
(Attach photo if available)
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ORDERED at _________________ County, Florida, on the ____ day of
_______________, 20 ___.
CIRCUIT COURT JUDGE
4. Order Adjudging Respondent in Indirect Criminal Contempt of Court
and Order of Commitment
IN THE CIRCUIT COURT OF THE
__________ JUDICIAL CIRCUIT
IN AND FOR ____________
COUNTY, FLORIDA
DIVISION
CASE NO.:
IN RE:
Petitioner/Plaintiff,
vs.
Respondent/Defendant.
_______________________________/
ORDER ADJUDGING RESPONDENT IN INDIRECT CRIMINAL
CONTEMPT OF COURT AND ORDER OF COMMITMENT
On the ____ day of _______________, 20___, this Court issued an Order to
Show Cause directed to Respondent, _________________________ ordering
Respondent to appear and show cause why he/she should not be adjudged guilty
of, and punished for, criminal contempt of court for his/her willful violation of said
Order issued by this Court on __________________, 20___.
The Order to Show Cause was served upon Respondent on the ____ day of
_______________, 20___. ____________________________________________
(give details of service).
A hearing was held on this matter on the _____ day of _______________,
20___. Upon due deliberation, advice of counsel, and evaluation of the evidence
presented, this Court FINDS:
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That pursuant to the above Order Respondent was ordered to:
(give details of Order). Respondent has violated the terms of said Order issued by
this Court by the following act of conduct:
It is therefore ORDERED and ADJUDGED that Respondent is guilty of
indirect criminal contempt of this Court because of his/her violation of said Order
issued by this Court on ______________, 20____.
For such contempt Respondent is
a. hereby fined the sum of $______________.
b. committed to the Sheriff of __________ County to the county jail for
a period of _____ months _____ days and after being confined for such
period he/she shall be duly discharged from imprisonment according to law.
c. hereby sentenced to a term of probation subject to the following
terms and conditions:
DONE AND ORDERED at ____________ County, Florida, this _____ day of
_______________, 20___.
CIRCUIT COURT JUDGE
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Chapter Three
Civil Contempt
I. Indirect Civil Contempt
A. Definition
Civil contempt “is used to coerce an offending party into complying with a court
order rather than to punish the offending party for a failure to comply with a court
order.” The Florida Bar v. Taylor, 648 So. 2d 709, 711 n.2 (Fla. 1995) (citing
Johnson v. Bednar, 573 So. 2d 822 (Fla. 1991), receded from on other grounds,
Parisi v. Broward County, 769 So. 2d 359 (Fla. 2000)); Keitel v. Keitel, 716 So. 2d
842 (Fla. 4th DCA 1998). The contempt is remedied by imprisonment or a fine
unless and until the act ordered is performed. It is this freedom of the contemnor to
end the sentence immediately by doing what he/she was ordered to do that makes
the relief civil in nature. It is for this reason that the contemnor must be actually
able to do the ordered act for refusal to comply to constitute contempt. See Fla. R.
Civ. P. 1.570(c); Fla. Fam. L. R. P. 12.615.
Tips, Caveats, and Problems
• Non-parties cannot be held in civil contempt. DeMello v. Buckman, 914 So.
2d 1090 (Fla. 4th DCA 2005).
• A contempt order imposing sanctions and a warrant for failure to comply
with a court order were quashed when the underlying orders had been
reversed, in O’Neal v. Blackerby, 973 So. 2d 1160 (Fla. 1st DCA 2006).
B. Process and Burden of Proof Overview
Rule 12.615(d)(1), Florida Family Law Rules of Procedure, requires that the
alleged contemnor have the present ability to pay child support and willfully failed
to comply with the prior court order. Shelton v. Shelton, 965 So. 2d 179 (Fla. 2d
DCA 2007); Larsen v. Larsen, 949 So. 2d 278 (Fla. 4th DCA 2007). The contempt
order must contain the factual findings required by rule 12.615(d). Napoli v.
Napoli, 142 So. 3d 953 (Fla. 4th DCA 2014).
Before finding contempt, the court must first actually identify the sources from
which the contemnor could obtain funds to comply with a prior court order. Aburos
v. Aburos, 34 So. 3d 131 (Fla. 3d DCA 2010); Vazquez v. Vazquez, 827 So. 2d 384
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(Fla. 4th DCA 2002). In other words, the contemnor must actually have the ability
to comply with an order to be held in civil contempt. To prove contempt, the
petitioner must show by a preponderance of the evidence that the respondent has
willfully disobeyed an order of the court and that he or she has the present ability
to comply with that order. Aburos; Picurro v. Picurro, 734 So. 2d 527 (Fla. 4th
DCA 1999). The petitioner enjoys a presumption that the respondent has the ability
to comply if a prior valid court order exists. Id. The burden shifts then to the
respondent to show that he or she has lost that ability to comply. Id.
It is error to hold a defendant in contempt for failure to pay child support and
shortly thereafter find him or her indigent for purposes of appeal. Anderson v.
Department of Revenue ex rel. Hamilton, 11 So. 3d 424 (Fla. 4th DCA 2009).
The Department of Children and Families cannot be held in contempt for failure to
comply with a court order to place a child in a therapeutic foster home where the
department attempted to find a placement but none was available. Department of
Children and Families v. M.M., 855 So. 2d 1250 (Fla. 4th DCA 2003).
“Trial courts considering probate matters lack the power to use civil contempt to
incarcerate a former personal representative for failing to return estate property,
absent an express finding that the contemnor has the present ability to comply.”
Jensen v. Estate of Gambidilla, 896 So. 2d 917, 920 (Fla. 4th DCA 2005).
Evidence must be sufficient to justify a finding that the respondent has willfully
violated the court order. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); Knowles v.
Knowles, 522 So. 2d 477 (Fla. 5th DCA 1988).
To constitute contempt for failure to obey a previous order, the contemnor’s
behavior must clearly violate the order. Pearson v. Pearson, 932 So. 2d 601 (Fla.
2d DCA 2006); Curry v. Robbins, 744 So. 2d 527 (Fla. 3d DCA 1999); Knorr v.
Knorr, 751 So. 2d 64 (Fla. 2d DCA 1999).
Checklist
⎯ The purpose of the civil contempt order is to coerce compliance, not to
punish noncompliance.
⎯ The contemnor has clearly violated the prior court order.
⎯ The court has provided adequate notice and a full and fair opportunity to be
heard.
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⎯ An affirmative finding that the respondent willfully violated the court order
was made, and the facts establishing the violation or that the respondent has
the present ability to comply with the court order are included in the
contempt order.
⎯ A separate affirmative finding that the contemnor has the present ability to
comply with the purge provisions was made.
⎯ The order states the respondent has been adjudicated guilty of civil contempt
of court.
⎯ The contempt order sets forth the date of the original order (it is also
recommended that the original order be attached as an exhibit to the order of
contempt).
⎯ The number of days the respondent is to be confined is clearly set forth,
along with a purge provision stating exactly what the respondent must do to
purge him or herself.
Amendments to the Florida Family Law Rules of Procedure, 723 So. 2d 208 (Fla.
1998); Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); Andrews v. Walton, 428 So.
2d 663 (Fla. 1983); Lazzara v. Lazzara, 785 So. 2d 716 (Fla. 4th DCA 2001).
C. Elements of Civil Contempt and Due Process
1. Clear Violation
In order to find contempt for failure to obey a previous order, the contemnor’s
behavior must clearly violate an order. Menke v. Wendell, 188 So. 3d 869 (Fla. 2d
DCA 2015); Curry v. Robbins, 744 So. 2d 527 (Fla. 3d DCA 1999).
As part of this requirement, a person “may not be held in contempt of court for
violation of an order or a provision of a judgment which is not clear and definite,
so as to make a party aware of its command and direction.” Cooley v. Moody, 884
So. 2d 143, 145 (Fla. 2d DCA 2004).
A trial court’s oral pronouncement regarding a contempt order must control over a
later written order. Glick v. Glick, 874 So. 2d 1238 (Fla. 4th DCA 2004).
It was error for the court to order a former husband’s incarceration until payment
of the purge amount without first following the procedure set forth in rule
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12.615(c)(2)(B), Florida Family Law Rules of Procedure. Bruseau v. Bruseau, 955
So. 2d 615 (Fla. 5th DCA 2007).
Tips, Caveats, and Problems
• The failure to give the former husband adequate notice of the severe potential
consequences of a finding of contempt, along with the trial court’s failure to
make written findings of his present ability to pay, required the vacation of the
order holding the former husband in civil contempt. Patrick v. Patrick, 950 So.
2d 517 (Fla. 2d DCA 2007).
• Pursuant to rule 1.100(b), Florida Rules of Civil Procedure, an aggrieved party,
upon motion to the court, may initiate an action for an order of civil contempt.
The necessity of a rule to show cause to institute civil contempt proceedings has
been abolished. Smith v. Smith, 464 So. 2d 1287, 1288 n.1 (Fla. 5th DCA 1985).
• Contempt should not be used as a basis for a change of custody. The purpose of
civil contempt is to compel compliance. The sanction of changing custody
penalizes children and does not coerce compliance. Hunter v. Hunter, 65 So. 3d
1213 (Fla. 2d DCA 2011); Burckle v. Burckle, 915 So. 2d 747 (Fla. 2d DCA
2005); Berger v. Berger, 795 So. 2d 113 (Fla. 5th DCA 2001); LaLoggia-
VonHegel v. VonHegel, 732 So. 2d 1131 (Fla. 2d DCA 1999); Moody v. Moody,
721 So. 2d 731 (Fla. 1st DCA 1998).
• In Opatz v. Opatz, 67 So. 3d 446 (Fla. 4th DCA 2011), the court denied the
former wife’s contempt petition that was based on the former husband’s failure
to pay child support, but modified the child support without a petition or notice
of hearing. The district court reversed and remanded, finding that the wife’s due
process rights had been violated.
• The imposition of a $500 fine for indirect civil contempt for violation of an
injunction is improper where there was no purge provision and no indication
that the fine was meant to be coercive or compensatory. Politz v. Booth, 910 So.
2d 397 (Fla. 4th DCA 2005).
2. Opportunity to Be Heard
The failure to provide the contemnor with a hearing on his exceptions to the
general magistrate’s report prior to the entry of the order ratifying the report and
recommendation is reversible error. Silver v. Silver, 35 So. 3d 1012 (Fla. 5th DCA
2010).
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“While a person facing civil contempt is not entitled to all of the due process rights
afforded to a person facing indirect criminal contempt, he or she is nonetheless
entitled to a proceeding that meets the fundamental fairness requirements of the
due process clause of the Fourteenth Amendment. . . . This requires that the alleged
contemnor be provided with adequate notice and an opportunity to be heard.”
Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 4th DCA 2005).
Observing the required due process of law ― providing an opportunity to be heard
and providing notice ― must be more than “merely colorable or illusive.”
Tomayko v. Thomas, 143 So. 2d 227, 230 (Fla. 3d DCA 1962). It must be full and
fair, and notice must afford a reasonable time to prepare a defense (at least more
than three days). Woolf; Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996).
In accordance with rule 12.615(b), Florida Family Law Rules of Procedure, notice
of a hearing may be served as provided under rule 2.516, Florida Rules of Judicial
Administration (service by e-mail or other means) if it is “reasonably calculated to
apprise the alleged contemnor of the pendency of the proceedings.” Where a cause
is pending or is not yet concluded, it is the attorney of record, not the respondent,
who must be served. See Fla. R. Jud. Admin. 2.516. The notice must inform the
person to be served that the aggrieved party seeks an order to hold him or her in
contempt of court for the violation of a specific prior court order. The
motion/notice must also inform the respondent of the date and manner in which the
prior court order has been violated. See Allman v. Johnson, 488 So. 2d 884, 885
(Fla. 5th DCA 1986); Fla. R. Civ. P. Form 1.982; Fla. Fam. L. R. P. Form 12.960.
The motion for contempt 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.” Martyak v. Martyak, 881 So. 2d 48, 49 (Fla. 4th DCA
2004), citing Fla. Fam. L. R. P. 12.615(b). In Carter v. Hart, 240 So. 3d 863 (Fla.
5th DCA 2018), the former wife’s pro se motion for contempt and notice of
hearing lacked that language, and the former husband argued that his due process
rights were therefore violated. However, the appellate court affirmed, stating that
the former husband,
unlike Mr. Martyak, was present with counsel at the contempt hearing
and was provided with his due process right to present evidence as to
his present ability to pay and whether his failure to pay alimony was
willful. Thus, the failure, if any, to include the above language from
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rule 12.615 in Former Wife’s motion for contempt did not adversely
affect Former Husband’s due process rights to notice and an
opportunity to be heard and present evidence. Finally, at the start of
the contempt hearing, the trial court unequivocally placed Former
Husband on notice that he was facing potential incarceration as a
sanction for contempt. At no point during the hearing did Former
Husband object or otherwise argue that this sanction or remedy for his
potential contempt was unavailable because Former Wife did not
request it in her motion.
If the alleged contemnor appears, the court must make a finding of a present ability
to pay the purge amount in order to incarcerate the alleged contemnor. If the
alleged contemnor fails to appear, the court shall set a reasonable purge amount
and issue a writ of bodily attachment. Fla. Fam. L. R. P. 12.615(c).
Tips, Caveats, and Problems
• The court’s statement “So he’s going to tell me one more time he has no
money when I haven’t believed him anytime before that. . . . I don’t need his
testimony” deprived the defendant of the due process right to put on
evidence that he had no ability to pay the required fees. Peterson v.
Asklipious, 855 So. 2d 704, 705 (Fla. 4th DCA 2003).
• Failure to comply with the requirements of law may often result in reversal.
For example, a civil contempt judgment with a six-month jail sentence was
reversed when proceedings were not “conducted in scrupulous conformance
with the requirements of the law, including a sufficient charging document,
trial and post trial orders,” and appropriate purge provisions. Vereen v.
Spears, 819 So. 2d 923 (Fla. 3d DCA 2002).
• Three days’ notice has been held insufficient to prepare for a civil contempt
proceeding. Apfelbaum v. Lord & Lady Originals, Inc., 317 So. 2d 128 (Fla.
3d DCA 1975) (respondent suffered from heart ailment); see also Dileo v.
Dileo, 939 So. 2d 181 (Fla. 5th DCA 2006) (faxed copy of motion two days
before hearing insufficient).
• When a trial court had previously ordered a respondent to keep his address
current with the court clerk, notice of the contempt motion and hearing was
sufficient when sent by mail to the contemnor. Department of Revenue ex
rel. Northern v. Coley, 834 So. 2d 418 (Fla. 2d DCA 2003).
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3. Ability to Comply with Court Order
“The inability of an alleged contemnor to obey a court order is a good defense to a
charge of contempt for violating the order unless the alleged contemnor voluntarily
created the inability.” Florida Dept. of Health and Rehabilitative Services v. State,
616 So. 2d 66, 68 (Fla. 1st DCA 1993).
The alleged contemnor has the burden of proving by a preponderance of the
evidence why he or she was unable to obey the court order. Id.
Tips, Caveats, and Problems
• The Department of Health and Rehabilitative Services could not be found in
contempt for failing to move an incompetent defendant from a county jail to
a state licensed facility within 15 days when the department presented
unrebutted evidence that it could not comply with the order because no bed
space was available due to inadequate funding. State, Dept. of Health and
Rehabilitative Services v. Maxwell, 667 So. 2d 980 (Fla. 4th DCA 1996).
• It was error to place “the burden of proof on the former wife to demonstrate
that the former husband had the present ability to satisfy the arrearage” of
attorney’s fees when a previous order existed directing the husband to pay
support. “Contempt was an available remedy for the attorney’s fees,” and
“[i]n the contempt proceeding, the former wife was entitled to the same
presumption of the former husband’s ability to pay attorney’s fees that she
enjoyed with regard to child support.” Lamar v. Lamar, 889 So. 2d 983, 985
(Fla. 4th DCA 2004).
• Contempt for failure to pay child support was not warranted when the trial
court had found the former husband indigent for purposes of the trial
proceedings and appeal, and when no hearing was ever held on the former
husband’s petitions for downward modification of child support. “When the
trial court found that the former husband was capable of at least making a
minimum wage, the appropriate action was to order him to seek proper
employment through Florida State Employment Services and to report
weekly until employment is secured.” Herrera v. Sanchez, 885 So. 2d 480,
482 (Fla. 5th DCA 2004).
• Sanctions could not be imposed on a party that failed to file a fact
information sheet as ordered by the court, because the court gave the party
“no grace period in which to comply with the order before sanctions would
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be imposed and because it completely failed to consider [the party’s]
financial resources.” Creative Choice Homes, II, Ltd. v. Keystone Guard
Services, Inc., 137 So. 3d 1144 (Fla. 3d DCA 2014).
4. Right to Counsel
Due process of law requires that an alleged contemnor be advised of the charge
and be accorded an opportunity to defend himself or herself, including the
opportunity to be represented by counsel. Dykes v. Dykes, 104 So. 2d 598 (Fla. 3d
DCA 1958). However, the Fourteenth Amendment does not require the court to
appoint counsel for an alleged contemnor in civil contempt proceedings, because a
finding that a parent has the ability to pay precludes a finding that the party is
indigent. Andrews v. Walton, 428 So. 2d 663 (Fla. 1983).
In civil contempt proceedings, the right to counsel for indigent parties exists only
where possible incarceration is involved. But where certain procedural safeguards
are provided, the right to counsel may not be required. Turner v. Rogers, 564 U.S.
431, 131 S.Ct. 2507, 180 L.Ed.2d 452 (2011).
5. Deliberate Divestment
If the alleged contemnor has willfully divested himself or herself of the ability to
comply with the court order, the court cannot find the respondent in civil contempt
because compliance is no longer possible. Walker v. Edel, 727 So. 2d 359 (Fla. 5th
DCA 1999). However, if the alleged contemnor is still able to fulfill the purge
provision, the court may hold that person in indirect civil contempt. Brown v.
Smith, 705 So. 2d 682 (Fla. 4th DCA 1998).
6. Arrest
If the respondent fails to attend the hearing after being properly served with notice,
the court may hold him or her in contempt and/or issue a writ of bodily attachment.
Spencer v. Spencer, 311 So. 2d 822 (Fla. 3d DCA), cert. denied, 328 So. 2d 845
(Fla. 1975); Dykes v. Dykes, 104 So. 2d 598 (Fla. 3d DCA 1958).
Tips, Caveats, and Problems
• A circuit court may not issue a writ of bodily attachment with nationwide
applicability in order to apprehend a civil contemnor. Sanders v. Laird, 865
So. 2d 649 (Fla. 2d DCA 2004).
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• Form 12.962, Florida Family Law Rules of Procedure (Writ of Bodily
Attachment (Child Support)), was adopted by the supreme court on
December 2, 2010, see In re Amendments to the Supreme Court Approved
Family Law Forms, 50 So. 3d 595 (Fla. 2010), and amended on August 25,
2011, see In re Amendments to Florida Supreme Court Approved Family
Law Forms, 70 So. 3d 553 (Fla. 2011), and March 26, 2015, see In re
Amendments to Florida Supreme Court Approved Family Law Forms, 173
So. 3d 19 (Fla. 2015).
7. Order and Purge Provision
Every civil contempt sentence of confinement must contain a purge provision
giving the respondent the “key to the jail-house cell.” Neiman v. Naseer, 31 So. 3d
231, 233 (Fla. 4th DCA 2010); see also Pierce v. Pierce, 18 So. 3d 1074 (Fla. 2d
DCA 2009); Jones v. Ryan, 967 So. 2d 342 (Fla. 3d DCA 2007); Allman v.
Johnson, 488 So. 2d 884, 885 (Fla. 5th DCA 1986). It must clearly state the
conditions by which the contemnor can free himself or herself from the penalty
imposed. Neiman. The contempt order must include a recitation of the factual basis
for finding the present ability to pay the purge amount. Miller v. Murrah, 14 So. 3d
1019 (Fla. 5th DCA 2009); Pope v. Quattelbaum, 884 So. 2d 301 (Fla. 2d DCA
2004); Hayden v. Bieluch, 878 So. 2d 1270 (Fla. 4th DCA 2004). The purge
provision contained in the written order must also be consistent with the purge
provision orally pronounced. Hampton Manor, Inc. v. Fortner, 141 So. 3d 1260
(Fla. 5th DCA 2014), citing Romero v. Romero, 916 So. 2d 952 (Fla. 3d DCA
2005).
Rule 12.615(c)(2)(B), Florida Family Law Rules of Procedure, provides that in any
civil contempt hearing where the alleged contemnor fails to appear, the trial court
must “set a reasonable purge amount based on the individual circumstances of the
parties.” The trial court may not issue a writ of bodily attachment unless it first
establishes that the alleged contemnor has the present ability to pay the purge
amount. Janeski v. Janeska, 974 So. 2d 1220 (Fla. 2d DCA 2008).
When a trial court’s finding of a respondent’s ability to pay the purge amount
conflicted with an order of her insolvency made two weeks earlier in a separate
pending appeal, the appellate court reversed so the trial court could make specific
findings as to the respondent’s ability to pay. Downey v. Downey, 874 So. 2d 734
(Fla. 4th DCA 2004).
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The trial court must make separate affirmative findings of the ability to pay the
purge and the basis for that ability. Carbonell v. Capella, 30 So. 3d 664 (Fla. 5th
DCA 2010); Martyak v. Martyak, 873 So. 2d 405 (Fla. 4th DCA 2004).
Tips, Caveats, and Problems
• The court is not limited to the amount of cash the respondent has
immediately available as a purge amount but may look to any and all
available assets in determining the respondent’s ability to pay. Bowen v.
Bowen, 471 So. 2d 1274 (Fla. 1985); Harris v. Millett-Harris, 900 So. 2d
712 (Fla. 3d DCA 2005).
• A contempt order that contains a purge provision that is too broad or
indefinite is not enforceable. “[T]he purge provision must be clear and
definite, making the party aware of what is required in any given
circumstance. . . . The conduct that may land the appellant in jail should not
be subject to question.” Lanza v. Lanza, 804 So. 2d 408, 410 (Fla. 4th DCA
2001).
• The purge provision in the written order must be consistent with the trial
court’s purge oral pronouncement. Where the court orally set a purge
provision of $4,000 or surrender of a vehicle, and the written order set forth
a purge provision of $4,000 and surrender of the vehicle, the contempt order
was reversed. Romero v. Romero, 916 So. 2d 952 (Fla. 3d DCA 2005).
• The order of incarceration must contain a finding that the petitioner has the
present ability to pay the purge amount. Burbage v. Burbage, 24 So. 3d 684
(Fla. 5th DCA 2009); Chetram v. Singh, 937 So. 2d 716 (Fla. 5th DCA
2006); Cooper v. Spears, 741 So. 2d 1160 (Fla. 3d DCA 1999); Palma v.
Jenne, 763 So. 2d 359 (Fla. 4th DCA 1998).
• A sentence of six months in jail with a purge provision that the contemnor
would be released in 60 days upon completing a domestic violence course
was a criminal contempt. Even though a purge provision was included, the
contemnor was still required to serve 60 days in jail before release.
Therefore, the court’s failure to comply with due process requirements
involving criminal contempt led to reversal. Sando v. State, 972 So. 2d 271
(Fla. 4th DCA 2008).
• A civil contemnor is entitled to a hearing to demonstrate the inability to
comply with the purge provision even after the contempt adjudication,
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particularly when the contempt order was entered a substantial period of
time before the contemnor’s arrest. Cook v. Navarro, 611 So. 2d 47 (Fla. 4th
DCA 1992).
• It was error to set a $10,000 purge amount based on a finding that the
contemnor had $9,200 in corporate stock. The tax return relied on by the
court showed total liabilities and equity of shareholders was $9,200, but the
value of the stock was only $1,000. Buchanan v. Buchanan, 932 So. 2d 270
(Fla. 2d DCA 2005).
• In Wilbur v. Wilbur, 981 So. 2d 1252 (Fla. 2d DCA 2008), the former
husband was held in civil contempt for willful failure to pay support
payments to his former wife. He appealed, on the basis that the real estate
from which he might obtain an equity loan to satisfy the support obligation
was homestead. The appellate court affirmed, stating that the homestead
nature of the property does not protect a party as a matter of law from the
obligation. Accordingly, the trial court properly determined that the former
husband owned real estate with sufficient accessible equity to give him the
ability to pay the purge amount.
• A civil contempt order of incarceration with a purge of “the simple act of
complying with the entirely reasonable duly entered [sanctions order]” was
proper. Kwiecinski v. Renke, 916 So. 2d 1, 2 (Fla. 2d DCA 2005) (order
required compliance with discovery requests or posting of bond).
• The sanction of a driver’s license suspension must be considered a contempt
sanction for which the court must find a present ability to pay any purge
amount set. Porush v. Porush, 23 So. 3d 1284 (Fla. 4th DCA 2010).
8. Order Not Excessive
The contempt order should not be excessive. Rescigno v. Annino, 869 So. 2d 741
(Fla. 4th DCA 2004) (appellate court reversed trial court order requiring parties’
children to undergo six-month regimen of allergy shots).
D. Specific Examples of Indirect Civil Contempt
1. Parental Relationships and Visitation
A parent may be held in contempt for failing to encourage a relationship between
another parent and the children. Levy v. Levy, 861 So. 2d 1211 (Fla. 3d DCA
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2003). However, an order used to enforce parental visitation may not be excessive
or contrary to the best interests of the children. Rescigno v. Annino, 869 So. 2d 741
(Fla. 4th DCA 2004).
2. Property and Debt Settlement
A defendant cannot be held in contempt for non-payment of a debt that does not
involve a support obligation. Byrne v. Byrne, 133 So. 3d 1082 (Fla. 4th DCA
2014); Randall v. Randall, 948 So. 2d 71 (Fla. 3d DCA 2007); Vassell v. Vassell,
912 So. 2d 1254 (Fla. 1st DCA 2005); Fisher v. Fisher, 787 So. 2d 926 (Fla. 2d
DCA 2001); Knorr v. Knorr, 751 So. 2d (Fla. 2d DCA 1999). Neither may
property division awards be enforced by contempt; the remedies available are those
of a creditor against a debtor. La Roche v. La Roche, 662 So. 2d 1018 (Fla. 5th
DCA 1995); but see Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008) (when act at
issue does not involve payment of money, property division award may be
enforced by contempt; certifying conflict to that extent).
Tips, Caveats, and Problems
• Default interest payments on installment payments of equitable distribution
awards are non-support related debts that cannot be enforced by contempt.
Braswell v. Braswell, 881 So. 2d 1193 (Fla. 3d DCA 2004).
• The court erred in holding the former husband in contempt for failure to
comply with a provision of the final judgment requiring him to pay the
former wife for professional football tickets, because debts not involving
support cannot be enforced by contempt. Montanez v. Montanez, 697 So. 2d
184 (Fla. 2d DCA 1997).
• Contempt is an available tool to enforce payment into a children’s college
fund when the parties’ settlement agreement indicates that the provision
concerning the children’s college fund was intended as a child support
provision. East v. Lague, 893 So. 2d 706 (Fla. 1st DCA 2005).
• Where the intent of a lump sum alimony award is to provide support for a
spouse, the contempt power of the court is an available tool to enforce
payment. Bongiorno v. Yule, 920 So. 2d 1209 (Fla. 1st DCA 2006).
• In Oglesby v. Oglesby, 921 So. 2d 849 (Fla. 2d DCA 2006), the former
husband was ordered to pay a portion of his military pension to his former
wife. The judgment provided that “[t]he payment shall continue until the
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death of either party and shall be enforceable by contempt power of the
Court,” and “[t]he husband shall remain an active member of the military
until such time as his retirement benefits are fully vested.” Id. at 850. The
appellate court remanded as to those two provisions, stating that “a pension
is an asset subject to equitable distribution. . . . Consequently, the award to
the Former Wife of her share of the pension is not enforceable by contempt,”
and “a trial court does not have authority to order a party . . . to remain in a
certain job.” Id.
• The trial court held the wife in civil contempt when it learned she had
disposed of stock options in violation of a court order. The appellate court
held the wife could not be held in contempt for violation of the freeze order.
First, the court could not enter a freeze order to protect the wife’s attorney’s
fees claim. Second, the contempt power of the court could not be used for
settlement of property rights as opposed to alimony or child support. Pineiro
v. Pineiro, 988 So. 2d 686 (Fla. 4th DCA 2008).
• Contempt is not a proper method to enforce equitable distribution of a
pension benefit. Russo v. Russo, 129 So. 3d 507 (Fla. 2d DCA 2014).
3. Support Obligations
Support obligations, when not followed, potentially give rise to contempt
sanctions. When an order holds a parent in contempt for failure to pay child
support, the court must find: (1) a prior valid order of support; (2) a failure to pay
all or part of the ordered support; (3) the parent’s present ability to pay the support;
and (4) the parent’s willful refusal to comply with the prior court order.
Furthermore, the order must contain specific facts on which the allegations are
based. Ross v. Botha, 867 So. 2d 567, 570 (Fla. 4th DCA 2004) (citing Bowen v.
Bowen, 471 So. 2d 1274, 1278–1279 (Fla. 1985)); Fla. Fam. L. R. P. 12.615(d)(1).
In Naples v. Naples, 967 So. 2d 944 (Fla. 2d DCA 2007), the court erred in
dismissing the former wife’s motion for contempt for lack of subject matter
jurisdiction. The parties had agreed that the former husband would pay $1,000
alimony per month through his VA benefits. Citing federal preemption, the judge
dismissed the motion. The appellate court reversed, finding no conflict between
state and federal law.
Tips, Caveats, and Problems
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• The initial determination directing the support obligation creates a
presumption of ability to pay. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
• A contractual duty to pay for a child’s college expenses cannot be enforced
by contempt when the child is over 18. Nicoletti v. Nicoletti, 901 So. 2d 290
(Fla. 2d DCA 2005).
4. Erroneous, Vague, and Ambiguous Orders
To form the basis of a contempt action, the prior court order must be “clear
and definite, so as to make the party aware of its command and direction.”
Friedman v. Carr, 777 So. 2d 1012, 1013 (Fla. 2d DCA 2000). When an
order is not explicit or precise enough to put a party on notice about what the
party may or may not do, it cannot be the basis for an order for contempt.
Hokenstrom v. Environ Towers I Condominium Ass’n, Inc., 127 So. 3d 798
(Fla. 4th DCA 2013); Simpson v. Young, 884 So. 2d 186 (Fla. 2d DCA
2004) (both citing Keitel v. Keitel, 716 So. 2d 842, 844 (Fla. 4th DCA
1998)).
Tips, Caveats, and Problems
• Before a party may be held in contempt for violating an injunction, the
injunction must describe “in reasonable detail” the conduct that is
prohibited. Osmo Tec SACV Co. v. Crane Environmental, Inc., 884 So. 2d
324, 326 (Fla. 2d DCA 2004).
• Although the former husband could be held in contempt for failing to pay
alimony, it was error to impose an equitable lien on property he owned
jointly with his present wife when the present wife was not a party to the
proceedings. Lowe v. Lowe, 948 So. 2d 836 (Fla. 4th DCA 2007).
• A parent may not be held in contempt for failing to pay child support when
the order for child support was previously reversed. Savery v. Savery, 870
So. 2d 920 (Fla. 4th DCA 2004).
• “A court cannot base contempt upon noncompliance with something an
order does not say,” and it was improper for the court to hold the former
wife in contempt based on her current husband’s conduct. Wilcoxon v.
Moller, 132 So. 3d 281, 284, 286 (Fla. 4th DCA 2014) (order stated “Former
Wife’s current husband shall not be present anywhere that the Former
Husband is, particularly in the presence of the children”).
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E. Performance of an Act Ordered by Court
Rule 1.570, Florida Rules of Civil Procedure, and rule 12.570, Florida Family Law
Rules of Procedure, specifically authorize contempt to enforce performance of an
act if the evidence is sufficient. However, a husband could not be held in civil
contempt for failure to return a ring pursuant to a marital settlement agreement
when there was no evidence presented that he currently had the ring in his
possession. Morse v. Morse, 796 So. 2d 1200 (Fla. 3d DCA 2001).
A trial court may enforce a judgment requiring performance of a specific act
during a specific time period by holding the noncompliant party in contempt, or by
appointing someone to perform the act. Fla. R. Civ. P. 1.570(c). The trial court
may not hold a party in contempt and also obtain performance of the act by other
means. Dawson v. Dawson, 33 So. 3d 809 (Fla. 1st DCA 2010). The relief granted
must be the relief requested. Hill v. Hill, 65 So. 3d 143 (Fla. 5th DCA 2011).
In Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008), the husband was ordered to
sign a mortgage and promissory note to secure the wife’s equitable distribution.
The husband refused to sign and was sentenced to six months in jail, with a purge
provision that he sign the document. This part of the order was upheld on appeal
since the act of signing was distinct from the act of paying (failure to pay equitable
distribution cannot be enforced by court’s contempt power).
The former husband properly could be held in contempt for allowing health
insurance for the former wife to lapse where the final judgment required him to
maintain health coverage for her. However, sanctions of payment of all medical
expenses were reversed. The former husband could be required to pay for only
reasonable and necessary medical expenses and the court must find present ability
to pay those expenses. Granell v. Granell, 940 So. 2d 513 (Fla. 2d DCA 2006).
The former husband’s contempt conviction was reversed where the court punished
him for his efforts to ensure that medical expenses were reasonable and necessary
before paying them. The fact that they were ultimately found to be reasonable and
necessary did not validate a wrongly entered contempt conviction. Lustgarten v.
Lustgarten, 65 So. 3d 85 (Fla. 4th DCA 2011).
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F. Punishments
1. In General
Sanctions in civil contempt proceedings may be used for either or both of two
purposes: (1) to compensate the injured party for losses sustained (compensatory)
and (2) to coerce the offending party into compliance with a previously issued
court order (coercive). Parisi v. Broward County, 769 So. 2d 359 (Fla. 2000);
Creative Choice Homes, II, Ltd. v. Keystone Guard Services, Inc., 137 So. 3d 1144
(Fla. 3d DCA 2014).
“[T]he court may compel performance of a required act by coercive imprisonment”
or by compensatory fines when “violation of the decree has resulted in damages to
the injured party.” South Dade Farms, Inc. v. Peters, 88 So. 2d 891, 899 (Fla.
1956). Coercive civil contempt sanctions available to a trial court include
incarceration, garnishment of wages, additional employment, the filing of reports,
additional fines, delivery of assets, and revocation of a driver’s license. Parisi v.
Broward County, 769 So. 2d 359 (Fla. 2000). The contempt order must include a
purge provision. Id.
Tips, Caveats, and Problems
• A respondent who does not have the financial means to pay support cannot
be held in contempt. Therefore, the court should consider non-incarceration
options, such as: (a) directing the contemnor to seek employment through
the state employment services and ordering weekly reports on the status of
the job search; (b) issuing a writ of garnishment; and (c) entering an income
deduction order for payment of child support or alimony pursuant to section
61.1301, Florida Statutes. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985);
Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA 1998).
• A hybrid “bonded fine” is an invalid civil contempt sanction. Rylander v.
Teschouva, 877 So. 2d 7 (Fla. 3d DCA 2004) (citing Parisi v. Broward
County, 769 So. 2d 359 (Fla. 2000)). The trial court had imposed a $1,400
fine as sanction for contempt of an injunction, with the fine suspended
pending future compliance with the court’s prior orders.
• A fine of $2,500 per day for a total of 30 days for failure to provide court-
ordered discovery, plus attorney’s fees of $4,282, was a valid sanction given
the seriousness of the discovery violation and purge condition of compliance
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with court-ordered production of documents. Channel Components, Inc. v.
America II Electronics, Inc., 915 So. 2d 1278 (Fla. 2d DCA 2005).
• When a court found that a former wife had repeatedly, intentionally, and
maliciously interfered with the former husband’s visitation, it was proper to
hold her in contempt and impose over $12,000 in attorney’s fees as a
sanction, even though there was a great disparity in incomes. Robinson-
Wilson v. Wilson, 932 So. 2d 330 (Fla. 4th DCA 2006).
• A fine of more than $300,000 was upheld on appeal in J-II Investments, Inc.
v. Leon County, 21 S So. 3d 86 (Fla. 1st DCA 2009). The court entered an
order finding the contemnors in contempt and requiring them to obtain an
environmental management permit by a certain date and imposing a fine of
$1,000 per day for each day after that date that a permit had not been
obtained. The contemnors did not obtain the permit. The fine was upheld on
appeal because the judge made further findings of the reasonableness of the
amount of the fine in relation to the damages caused by noncompliance as
well as the contemnors’ ability to pay.
2. Fines
“A fine for civil contempt is proper if it either coerces a defendant into compliance
with the court’s order or compensates the plaintiff for losses sustained; if the fine is
coercive in nature, it must provide for its avoidance through obedience; if the fine
is compensatory in nature, the amount must reasonably relate to the complainant’s
losses shown by the record.” Boca Raton Towing, Inc. v. Boca Raton Towing and
Recovery, Inc., 729 So. 2d 531 (Fla. 4th DCA 1999). A fine of $1,000 per day
against a non-party for failure to appear for deposition and provide records was
reversed where the court made no finding as to the harm caused by the failure to
appear and/or produce. Boby Express Co. v. Guerin, 930 So. 2d 842 (Fla. 3d DCA
2006).
Tips, Caveats, and Problems
• A fine is an unconstitutional criminal penalty if a contemnor has no
opportunity to reduce or avoid it through compliance. Condren v. Bell, 792
So. 2d 578 (Fla. 4th DCA 2001).
• When a fine imposed in an indirect civil contempt proceeding is not
compensatory, it is civil only if the contemnor is given an opportunity to
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purge. Nical of Palm Beach, Inc. v. Lewis, 815 So. 2d 647 (Fla. 4th DCA
2002).
• The court erred in ordering DCF to pay $350 per day for every day
appropriate placement was not provided to a juvenile to “offset the damages
he suffered,” when there was no evidence of any alleged damage to the
juvenile. Department of Children and Families v. M.M., 855 So. 2d 1250
(Fla. 4th DCA 2003).
• “[F]ixed fines also may be considered purgable [sic] and civil when
imposed and suspended pending future compliance. . . . [A] ‘fixed fine that
is “imposed and suspended pending future compliance” with the court’s
prior orders is considered a purgeable sanction.’” Nical of Palm Beach, Inc.
v. Lewis, 981 So. 2d 502, 505 (Fla. 4th DCA 2008), quoting International
Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 829–830,
114 S.Ct. 2552, 129 L.Ed.2d 642 (1994).
• “[C]ivil contempt sanctions, or those penalties designed to compel future
compliance with a court order, are considered to be coercive and avoidable
through obedience, and thus may be imposed in an ordinary civil proceeding
upon notice and an opportunity to be heard. Neither a jury trial nor proof
beyond a reasonable doubt is required.” Nical of Palm Beach, Inc. v. Lewis,
981 So. 2d 502, 505 (Fla. 4th DCA 2008).
• “[A] coercive civil sanction that is suspended ad infinitum provides the
contemnor with the requisite ability to purge.” Id. at 506.
• When a court imposes a retroactive fine for failure to follow a court order,
without a purge provision, the fine becomes a criminal penalty rather than a
civil contempt sanction. Berlow v. Berlow, 21 So. 3d 81 (Fla. 3d DCA
2009); In re Steffens, 988 So. 2d 142 (Fla. 5th DCA 2008).
3. Incarceration
Incarceration was a proper tool to enforce compliance with a civil contempt fine
that the contemnor had the financial ability to pay. Whitby v. Infinity Radio, Inc.,
961 So. 2d 349 (Fla. 4th DCA 2007). The sentence may be for a fixed period;
however, it must allow for release from confinement upon compliance with the
order. Alves v. Barnett Mortg. Co., 688 So. 2d 459 (Fla. 4th DCA 1997).
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An administrative order that allows for incarceration of contemnors who have
failed to pay court costs until a hearing before a court that convenes only
Wednesdays, without a determination of ability to pay the costs, violates the
constitution. Akridge v. Crow, 903 So. 2d 346 (Fla. 2d DCA 2005).
“In a civil contempt proceeding, the trial court cannot incarcerate, even if only
coercively, without providing the contemnor the opportunity to prove his inability
to comply. That means the court cannot use discovery sanctions [striking the
husband’s pleadings in response to a contempt motion] as a basis for finding an
inability to comply.” Miller v. Miller, 891 So. 2d 1201 (Fla. 4th DCA 2005).
The three-step process for contempt is as follows:
1. The initial burden is on the movant in a contempt proceeding to show
a prior court order and failure to pay.
2. The burden then shifts to the defaulting party to show inability to pay.
3. If the court finds a willful violation and that incarceration is
appropriate, “the court must make a separate, affirmative finding that
the contemnor possesses the present ability to comply with the purge
conditions.” Albright v. Albright, 788 So. 2d 1125, 1127 (Fla. 4th
DCA 2001).
Tips, Caveats, and Problems
• “A finding of civil contempt without incarceration may be a useful tool in
obtaining compliance with a child support order.” The court can use other
means than incarceration to obtain compliance. Brown v. Smith, 705 So. 2d
682, 685 (Fla. 4th DCA 1998).
• If the court finds that the contemnor has continually and willfully neglected
his or her obligation, the court may find either civil or criminal contempt.
Lascaibar v. Lascaibar, 715 So. 2d 1042 (Fla. 3d DCA 1998).
4. Attorney’s Fees
“As a general rule, attorney’s fees may be awarded as a sanction in civil contempt
proceedings without findings as to the parties’ respective need and ability to pay.”
Worthington v. Harty, 677 So. 2d 1371 (Fla. 4th DCA 1996). However, in an
action instituted under chapter 61, Florida Statutes, “ability to pay and need must
be considered by the court before ordering payment of attorney’s fees in contempt
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56
proceedings incident to enforcing orders relating to support or custody.”
Worthington, 677 So. 2d at 1372.
Tips, Caveats, and Problems
• Attorney’s “fees in contempt proceedings arising from dissolution of
marriage lawsuits [under chapter 61, Florida Statutes,] are decided under the
same standards as the underlying dissolution: need and ability to pay.” Hunt
v. Hunt, 855 So. 2d 1181, 1182 (Fla. 1st DCA 2003); see also Sobel v. Sobel,
873 So. 2d 449 (Fla. 4th DCA 2004); Keitel v. Keitel, 716 So. 2d 842, 844
(Fla. 4th DCA 1998).
• Attorney’s fees for the contempt proceeding may be awarded to compensate
the injured party. Alpha 2001, Inc./Omega 2011, L.L.C. v. Bookstein, 933
So. 2d 731 (Fla. 4th DCA 2006).
• Where there was minimal noncompliance with support obligation, the
evidence failed to establish the failure to pay was willful, and the contempt
order was reversed. However, because the former husband breached the
marital settlement agreement by not paying, he was responsible for the
former wife’s attorney’s fees and costs as provided by the agreement.
Griffith v. Griffith, 941 So. 2d 1285 (Fla. 4th DCA 2006).
• “‘[I]f a party is found in contempt, it is proper for the court to compensate
the injured party by assessing attorney’s fees for the contempt proceedings,’
which compensation ‘must be based upon evidence of an injured party’s
actual loss’” relating to the prosecution of the contempt motion. Nical of
Palm Beach, Inc. v. Lewis, 981 So. 2d 502, 507 (Fla. 4th DCA 2008),
quoting Levine v. Keaster, 862 So. 2d 876, 880 (Fla. 4th DCA 2003).
G. Sample Indirect Civil Contempt Form
IN THE CIRCUIT COURT OF THE
__________ JUDICIAL CIRCUIT IN
AND FOR ____________
COUNTY, FLORIDA
DIVISION
CASE NO.:
IN RE:
Chapter Three Civil Contempt
Contempt Benchguide December 2018
57
Petitioner/Plaintiff,
vs.
Respondent/Defendant.
_______________________________/
CIVIL CONTEMPT MOTION AND NOTICE OF HEARING
TO: (name of attorney for party, or party if not represented)
YOU ARE NOTIFIED that plaintiff will apply to the Honorable ..............., Circuit
Judge, on .....(date)....., at ......m., in the .......... County Courthouse at ..........,
Florida, for an order adjudging .....(defendant’s name)..... in contempt of court for
violation of the terms of the order or judgment entered by this court on
.....(date)....., by failing to ...................., and I certify that a copy hereof has been
furnished to .......... by mail on .....(date)......
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.
If you are a person with a disability who needs any accommodation in order
to participate in this proceeding, you are entitled, at no cost to you, to the
provision of certain assistance. Please contact [identify applicable court
personnel by name, address, and telephone number] at least 7 days before
your scheduled court appearance, or immediately upon receiving this
notification if the time before your scheduled appearance is less than 7 days; if
you are hearing or voice impaired, call 711.
II. Direct Civil Contempt
Direct civil contempt must occur in the court’s actual presence, the conduct must
intentionally obstruct the court’s administration of justice, and the punishment
must be coercive in nature. Contempt may be commenced on the court’s own
motion or the motion of a person with standing.
The proceedings are summary in nature and may be invoked forthwith upon the
happening of the contemptuous conduct. A motion and notice of hearing are not
Chapter Three Civil Contempt
Contempt Benchguide December 2018
58
necessary. The remaining procedures and requirements are the same as for direct
criminal contempt.
Tips, Caveats, and Problems
• Direct civil contempt involves conduct that both occurs in the presence of
the court and is remedied or compensated by a coercive order. Only three
cases in Florida have actually used the phrase “direct civil contempt,” and
one was later withdrawn and a different result reached. Baitty v. Weaver, 734
So. 2d 582 (Fla. 4th DCA 1999) (stating prior opinion withdrawn). Baitty
involved an attorney’s misrepresentation to the court that amounted to direct
civil contempt because “the statement was made wilfully and deliberately
for the purpose of obstructing the court’s administration of justice.” Id. at
584.
• The second case, Pendley v. State, 392 So. 2d 321 (Fla. 1st DCA 1981),
involved a witness who would not testify before a grand jury. When brought
before a judge, the witness said he would not testify and was held “in direct
civil contempt and ordered . . . incarcerated until he answered the questions
propounded by the grand jury. When asked if this would cause him to
answer the questions, [he] stated it would not.” Id. at 322. He was then held
in direct criminal contempt. On appeal, the contempt was reversed because it
did not occur in the actual presence of the court, and thus the summary
punishment employed was a violation of due process.
• In the third case, Napoli v. Napoli, 142 So. 3d 953, 955 (Fla. 4th DCA
2014), the husband did not comply with the payment schedule for spousal
support in the temporary relief order. The trial court found him in direct civil
contempt, but the appellate court reversed because the order did “not contain
an express finding that [he] willfully failed to comply with the court’s
temporary relief order. Second, [it did] not articulate the facts supporting the
court’s conclusion that [he] had the ability to comply with the court’s prior
order. Finally, the contempt order sanctions [him] with incarceration but
does not contain a separate, affirmative finding that he had the present
ability to comply with the purge.”
• There was no basis for a civil contempt finding when the petitioner “was not
a party to the proceedings below, had not been subpoenaed to testify, but
voluntarily appeared at the hearing, and was not violating any previous court
order.” Daniel v. Garrison, 894 So. 2d 308 (Fla. 3d DCA 2005).
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Contempt Benchguide December 2018
59
Chapter Four
Juvenile Contempt and Traffic Contempt
I. Juvenile Contempt
The procedures for juvenile contempt are similar to those described in the prior
chapters. However, certain important differences exist and must be carefully
followed. These differences include:
The order to show cause must be served in the same manner as a summons. Fla. R.
Juv. P. 8.150(c)(2).
For a direct contempt hearing, the child has a right to legal counsel, and to have
legal counsel appointed if the child is indigent. For indirect contempt, “counsel
must be appointed for all contempt hearings if the child qualifies for such
appointment, or the child has the right to retain counsel, unless the child waives
counsel in writing as required by rule 8.165.” Fla. R. Juv. P. 8.150(b), (c)(1).
Juveniles are entitled to the due process rights afforded to them by rules 8.150(c),
8.285(b), and 8.286, Florida Rules of Juvenile Procedure, and sections
984.09(4)(b) and 985.216(4)(b) (now 985.037(4)(b)), Florida Statutes, including a
hearing within 24 hours for indirect criminal contempt. W.C. v. Smith, 898 So. 2d
1137 (Fla. 1st DCA 2005).
Under rule 8.150, Florida Rules of Juvenile Procedure, to hold a party in contempt,
the order to show cause issued by the court must state the facts constituting the
contempt and provide the contemnor with a reasonable time for preparation of a
defense after providing the statement of particulars of the acts constituting the
contempt. G.C. v. State, 901 So. 2d 1021 (Fla. 4th DCA 2005).
Section 985.037, Florida Statutes, does not prohibit the trial court from imposing
consecutive sentences of secure detention for each separate instance of contempt.
J.M. v. Gargett, 101 So. 3d 352 (Fla. 2012) (resolving conflict among districts,
disapproving M.P. v. State, 988 So. 2d 1266 (Fla. 5th DCA 2008)).
A delinquent child may be placed in secure detention for up to five days for a first
offense and 15 days for a second or subsequent offense. § 985.037(2), Fla. Stat.
Placement in a secure facility is appropriate only if the court first determines that
an alternative sanction is inappropriate or unavailable, or was previously ordered
and not followed. See § 985.037(3), Fla. Stat. If a child found in contempt is
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sentenced to secure detention, on motion of any party the court must review the
placement to determine whether it is appropriate for the child to remain detained.
Fla. R. Juv. P. 8.150(a).
For example, secure detention may be ordered as a sanction for indirect contempt
for violating community control. G.S. v. State, 709 So. 2d 122 (Fla. 5th DCA
1998).
Effective January 1, 2016, the supreme court added new subpart C (Truancy
Proceedings) to Part V of the Florida Rules of Juvenile Procedure, allowing
enforcement through the court’s contempt power. In re Amendments to Florida
Rules of Juvenile Procedure, 175 So. 3d 263 (Fla. 2015).
Tips, Caveats, and Problems
• For indirect contempt, the trial court must follow the mandatory procedures
set forth in Florida Rule of Juvenile Procedure 8.150 and section 985.037,
Florida Statutes. J.H. v. State, 216 So. 3d 761 (Fla. 5th DCA 2017).
• “[I]ndirect criminal contempt is the procedure a trial court must use to
enforce violations of a juvenile pretrial diversion program or conditions of
pretrial release.” A.P. v. State, 215 So. 3d 662 (Fla. 5th DCA 2017).
• An adult cannot be sentenced as an adult for contempt for failing to
complete court-ordered juvenile placement that was ordered when she was
under the age of 18. N.M.R. v. State, 711 So. 2d 145 (Fla. 5th DCA 1998).
• The court may not order that a child be placed in a secure facility as
punishment for contempt unless the court determines that an alternative
sanction is inappropriate or unavailable or that the child was initially ordered
to an alternative sanction and did not comply with the alternative sanction.
§ 985.037, Fla. Stat.
• Courts are encouraged to order a child to perform community service up to
the maximum number of hours when appropriate before ordering secure
facility as punishment for contempt. The court may request the alternative
sanctions coordinator to recommend the most appropriate sanction. See
§ 985.037(3), Fla. Stat.
• Section 985.037(4)(a), Florida Statutes, was amended in 2014 to add that if a
child is charged with direct contempt of court, including traffic court, “[t]he
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61
court must hold a hearing to determine if the child committed direct
contempt. Due process must be afforded to the child during this hearing.”
• In addition to any other sanction, the court may direct the DMV to withhold
issuance of or suspend a child’s driver license or driving privileges for up to
one year for a first offense and two years for a second or subsequent offense.
§ 985.037(4)(d), Fla. Stat.
• To find a juvenile witness in criminal contempt for perjury, the record must
support a finding that the juvenile has testified untruthfully or that there is a
conflict between the juvenile’s written statement and his or her actual
testimony. B.B. v. State, 872 So. 2d 456 (Fla. 3d DCA 2004).
II. Traffic Contempt
Direct and indirect criminal contempt are available in traffic court and “shall be
proceeded upon in the same manner as in the Criminal Rules of Procedure.” Fla. R.
Traf. Ct. 6.090.
However, traffic hearing officers lack the authority to preside over contempt
proceedings. Hearing officers may file a verified motion for an order of contempt
before any state trial court judge in the same county in which the alleged contempt
occurred. Fla. R. Traf. Ct. 6.080.
