2013 Florida Judicial College - Phase 2

CONTEMPT & ENFORCEMENT

2023 Florida Judicial College • Phase II • Family Track

C O N T E M P T & E N F O R C E M E N T

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DEFINITION OF CONTEMPT

A refusal to obey a legal order, mandate, or decree.

An act tending to embarrass, hinder, or obstruct the court in

the administration of justice or to lessen its authority or dignity.

THE FOUR DIFFERENT KINDS OF CONTEMPT

Indirect Criminal Contempt

Committed outside the presence of the court.

Remedy is to vindicate the court’s authority

and punish.

Fla. R. Crim. P. 3.840 sets forth procedures

for prosecution

Burden of proof is beyond a reasonable doubt

Potential incarceration up to 1 year and/or up

to $500 fine.

Entitled to court-appointed attorney.

Indirect Civil Contempt

Committed outside the presence of the court.

Remedy is remedial and used to coerce

offending party to comply with order.

Burden of proof is preponderance or greater

weight of the evidence.

Not entitled to court-appointed attorney.

Fla. Fam. L. R. P. 12.615

(Fla. R. Civ. P. 1.570(c)(2))

Direct Criminal Contempt

Committed in the actual presence of the court.

Remedy is to vindicate the court’s authority

and punish.

May be punished summarily, but requires

scrupulous compliance with

Fla. R. Crim. P. 3.830.

Burden of proof is beyond a reasonable doubt

Potential incarceration up to 1 year

and/or up to $500 fine.

Entitled to court-appointed attorney.

Direct Civil Contempt

Committed in the immediate presence of the

court.

Burden of proof is preponderance or greater

weight of the evidence.

Not entitled to court-appointed attorney.

Remedy is remedial and used to coerce

offending party to comply with order.

Fla. Stat. Sec. 38.23 (1999). See also Ex Parte Earman, 85 Fla. 297, 95 So. 2d 955 (Fla. 1923); A.A. v. Rolle,

604 So. 2d 813, 815 (Fla. 1992).

See Richey v. McLeod, 188 So. 228 *Fla. 1939); Murrell v. State, 595 So. 2d 1049 (Fla. 4

DCA 1992).

C O N T E M P T & E N F O R C E M E N T

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INDIRECT CIVIL CONTEMPT IN FAMILY PROCEEDINGS

A. Trial Court Findings

1. Prior order entered.

2. Failure to pay/comply.

3. Present ability to pay/comply.

4. Willful failure to comply.

5. Facts to support findings.

6. If incarcerated, must make separate additional finding of present ability to

pay or comply.

B. Burden of Proof

1. Initial burden is on movant to show by a preponderance of the evidence prior

court order and failure to pay or comply. (There is a presumption based on prior

court order that the party has ability to comply.)

2. Burden then shifts to defaulting party to show inability to pay or comply.

3. If court finds willful violation and incarceration appropriate, there must be a

separate, affirmative finding of present ability to pay purge amount.

Picurro v. Picurro, 734 So. 2d 527 (Fla. 4

DCA 1999).

C. Due Process

While a person facing civil contempt is not entitled to all of the due process

rights afforded to a person facing criminal contempt, the person is nonetheless

entitled to a proceeding that meets the fundamental fairness requirements of the

due process of the 14

Amendment (i.e., adequate and actual notice and an

opportunity to adequately prepare and be heard). Woolf v. Woolf, 901 So. 2d 905

(Fla. 4

DCA 2005).

D. Orders of Contempt

1. State the Respondent has been adjudicated guilty of civil contempt of court.

2. Set forth the date of the original order (and attach as exhibit if possible)

3. Make an affirmative finding that the Respondent willfully violated the court

order and briefly set forth the fact that show the violation or that the Respondent

has the actual, present ability to comply with the court order.

4. Make a separate affirmative finding that the contemnor has the present

ability to comply with the purge provisions. (A respondent who does not have the

financial ability to purge cannot be incarcerated. The Court may consider non-

incarcerative alternatives.)

5. Set forth the number of days the Respondent is to be confined.

(6. Order holding party in indirect civil contempt for failure to comply with

prior court order is non-final and not appealable but is reviewable by certiorari.

Hofschneider v. Hofschneider, 177 So. 3d 87 (Fla. 2d DCA 2015).

C O N T E M P T & E N F O R C E M E N T

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ENFORCEMENT

A. Jurisdiction to Enforce Orders

1. Retention of Jurisdiction to Enforce Orders

Courts generally retain jurisdiction to enforce their own orders and

judgments and post-judgment proceedings are a continuation of the

original action.

Courts no not have jurisdiction to enter order modifying parties’ rights

or address issues which were not adjudicated in the dissolution

proceedings, absent a specific reservation of jurisdiction in the final judgment.

2. Foreign Decrees

a. Full Faith and Credit to Judgments

Florida must give full faith and credit to all final and non-modifiable

judgment of sister state which were entered in accordance with the

due process rights of the parties.

b. Domesticating Foreign Judgments

Florida Enforcement of Foreign Judgments Act: Section 55.501 et seq.

The Florida court must have personal jurisdiction over the responding

party in Florida before a foreign decree can be domesticated and enforced.

c. Comity

The rule of judicial comity allows courts of one jurisdiction to give

effect to the law and judicial decisions of another state, not as a matter

of obligation, but out of deference and respect. For example, orders

of foreign countries.

d. Child Support – UIFSA, Section 88.0011 et seq

The Uniform Interstate Family Support Act provides remedies for

the enforcement and modification of support orders which are

cumulative and do not affect the availability of other remedies.

The statute provides the basis for acquiring personal jurisdiction

over a non-resident individual party in order to establish, enforce, or

modify a support order.

B. Other Methods and Remedies for Enforcement of Financial Issues

1. Liens against Property

2. Income Deduction Orders

3. Garnishment

4. Entry of Judgment for Arrearages

5. Statutory Sanctions for Failure to Pay Child Support

6. Writs

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RULE 12.615

CIVIL CONTEMPT IN SUPPORT MATTERS IN FAMILY LAW CASES

(a) Applicability.

This rule governs civil contempt proceedings in support matters related to

family law cases. The use of civil contempt sanctions under this rule shall be

limited to those used to compel compliance with a court order or to compensate a

movant for losses sustained as a result of a contemnor's willful failure to comply

with a court order. Contempt sanctions intended to punish an offender or to

vindicate the authority of the court are criminal in nature and are governed by

Florida Rules of Criminal Procedure 3.830 and 3.840.

(b) Motion and Notice.

Civil contempt may be initiated by motion. No civil contempt may be imposed

without notice to the alleged contemnor and without providing the alleged

contemnor with an opportunity to be heard. The civil contempt motion and notice

of hearing may be served by mail provided notice by mail is reasonably calculated

to apprise the alleged contemnor of the pendency of the proceedings. The notice

must specify the time and place of the hearing and must contain the following

language: "FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE

COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR

ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48

HOURS BEFORE A HEARING IS HELD. The motion must recite the essential

facts constituting the acts alleged to be contemptuous.

In any civil contempt hearing, after the court makes an express finding that the

alleged contemnor had notice of the motion and hearing:

(1) the court shall determine whether the movant has established that a prior

order directing payment of support was entered and that the alleged contemnor has

failed to pay all or part of the support set forth in the prior order; and

(2) if the court finds the movant has established all of the requirements in

subdivision 12.615(c)(1) of this rule, the court shall,

(A) if the alleged contemnor is present, determine whether the alleged

contemnor had the present ability to pay support and willfully failed to pay such

support, the court is to determine whether the failure to pay such support is willful;

(B) if the alleged contemnor fails to appear, set a reasonable purge amount

based on the individual circumstances of the parties. The court may issue a writ of

bodily attachment and direct that, upon execution of the writ of bodily attachment,

the alleged contemnor be brought before the court within 48 hours for a hearing on

whether the alleged contemnor has the present ability to pay support and, if so,

whether the failure to pay such support is willful.

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RULE 12.615 continued . . .

(d) Order and Sanctions.

After hearing the testimony and evidence presented, the court shall enter a

written order granting or denying the motion for contempt.

(1) An order finding the alleged contemnor to be in contempt shall contain a

finding that a prior order of support was entered, that the alleged contemnor has

failed to pay part or all of the support ordered, that the alleged contemnor has had

the present ability to pay support, and that the alleged contemnor has willfully

failed to comply with the prior court order. The order shall contain a recital of the

facts on which these findings are based.

(2) If the court grants the motion for contempt, the court may impose

appropriate sanctions to obtain compliance with the order including incarceration,

attorneys' fees, suit money and costs, compensatory or coercive fines, and any

other coercive sanction or relief permitted by law provided the order includes a

purge provision as set forth in subdivision 12.615(e) of this rule.

(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive

sanction for failure to comply with a prior support order, the court shall set

conditions for purge of the contempt, based on the contemnor's present ability to

comply. The court shall include in its order a separate affirmative finding that the

contemnor has the present ability to comply with the purge and the factual basis for

that finding. The court may grant the contemnor a reasonable time to comply with

the purge conditions. If the court orders incarceration but defers incarceration for

more than 48 hours to allow the contemnor a reasonable time to comply with the

purge conditions, and the contemnor fails to comply within the time provided, the

movant shall file an affidavit of noncompliance with the court. If payment is being

made through the Central Governmental Depository, a certificate from the

depository shall be attached to the affidavit. The court then may issue a writ of

bodily attachment. Upon incarceration, the contemnor must be brought

immediately before the court within 48 hours for a determination of whether the

contemnor continues to have the present ability to pay the purge.

(f) Review after Incarceration. Notwithstanding the provisions of this rule, at any

time after a contemnor is incarcerated, the court on its own motion or motion of

any party may review the contemnor's present ability to comply with the purge

condition and the duration of incarceration and modify any prior orders.

(g) Other Relief. Where there is a failure to pay support or to pay support on a

timely basis but the failure is not willful, nothing in this rule shall be construed as

precluding the court from granting such relief as may be appropriate under the

circumstances.

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CONTEMPT & ENFORCEMENT SCENARIOS

● Parenting – Parents & Children

● Equitable Distribution

● Alimony

● Child Support

● Everything Else

– Injunction Hearing

- Failure to Surrender Firearms

- Failure to Appear at Compliance Hearing

– In Court – by Litigant

– In Court – By Attorney

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #1

Parenting – Children who Resist & Refuse & the Parents who Enable Them

You have presided over an intensely emotional and acrimonious family case

for the past five years. Given your knowledge of the family and after multiple

evidentiary hearings with expert testimony, you have found that the Mother has

deliberately alienated the three children against the Father. The children refuse to

have any contact with the Father. You further believe that there is no good cause

for the alienation – that the Father is a good dad and there is no evidence of any

kind of abuse, neglect, safety or personality issues to validate the alienation.

Under the terms of the court’s most recent temporary parenting plan, the

Father has been granted 100% time sharing while the Mother has been court-

ordered to meet certain benchmarks to regain timesharing with the children,

including: complete a mental health examination and any recommended therapy,

participate in family therapy sessions, and make her best efforts to assist and

encourage the children re-establish a loving relationship with the Father.

Since the order was entered three days ago, the Mother has secreted the

children and their whereabouts are unknown. They have not attended school or

extra-curricular activities. The Father has filed a motion for contempt. You set the

contempt hearing on an expedited basis. At the time of the hearing, both parents

are present. The Mother has brought all three children to the courtroom. She

states that the children wish to address the Court directly and have threatened to

run away or commit suicide if they are forced to see the Father.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #2

Equitable Distribution – Credit Card Nightmare

You have finally entered a Final Judgment in the Smith dissolution case and

have wished them well.

As part of the scheme of equitable distribution, you have ordered John

(Former husband) to pay off the $25,000 of marital debt incurred on credit cards

that are solely in Jane’s (former wife) name. Three months ago, John stopped

making payments on the credit card debt and, as a result, Jane is in default and her

credit score has been negatively impacted. She claims that she is unable to obtain

re-financing for the martial home as a result.

Jane, who is self-represented, files an emergency motion seeking to have

John held in contempt. She specifically requests that he be incarcerated until he

makes all back-payments because she knows he can afford to pay (the children

recently told her that “Dad got a huge bonus at work.”)

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

FACT PATTERN #3

Equitable Distribution – A Ring Just Like Princess Diana’s!

Yes, we are still with the Smith family.

As part of the scheme of equitable distribution, you have ordered Jane to

return a Smith family heirloom to John – his great-grandmother’s 2-carat sapphire

and diamond ring. You found that the ring is worth $25,000. Jane has become

quite attached to the ring and refuses to surrender it to John. John’s attorney files a

motion seeking to have Jane held in contempt for refusing to turn over the ring as

part of equitable distribution.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #4

Alimony – Failure to Pay Temporary Support

Yep. STILL the Smith family.

Relatively early in the case, Jane’s attorney files a Motion for Temporary

Support. You send the parties to mediation where they settle the issue of

temporary support and John agrees to pay Jane $2,500 a month. At the mediation,

John, Jane, their attorneys, and the mediator all sign a stipulation and the hearing

on Jane’s Motion for Temporary Support is cancelled. Three months later, John

stops paying Jane temporary support. Jane’s attorney files a motion for contempt,

seeking incarceration for John’s failure to pay despite his ability to do so.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #5

Alimony – Failure to Pay Permanent Alimony

It’s been a while since you’ve seen the Smith family.

You’ve rotated out of the family division for a few years and have now

returned after a relaxing stint in the felony division. However, even though TEN

years have passed since you entered a Final Judgment in this case, the Smiths are

STILL in litigation.

As part of the Final Judgment, you awarded Jane $4,500 a month in

permanent alimony based on evidence introduced at trial that she had a progressive

degenerative muscle disease that effectively prevented her from working. John

stopped paying alimony one year ago and Jane, who is self-represented, has filed a

motion seeking to have John held in contempt.

At the same time John stopped paying alimony, he filed a Supplemental

Petition to Terminate Alimony based on his assertion that (1) Jane’s disease is

really not that bad and she is able to work and (2) Jane is in a supportive

relationship with her “best friend” Jennifer. As set forth in his Supplemental

Petition, John alleges that the two women have been together as a couple for the

past three years and have an active social life and engage in numerous activities as

a couple including bike riding and dancing.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERNS #6a

Child Support

These Smith people just won’t let it go.

As part of the final judgment, John is ordered to pay 100% of Jacob’s private

school expenses, which are approximately $1,000 a month. Though the parents

initially agreed for Jacob to attend this school, John now has doubts as to whether

Jacob is a special needs child and whether the school is appropriate for him in

terms of curriculum and other offerings.

Jane files a motion seeking to have John held in contempt. John files a

motion seeking to modify this monetary obligation.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

FACT PATTERNS #6b

Child Support

As part of the motion she filed above, Jane also seeks to have John held in

contempt for failure to obtain and maintain a life insurance policy to secure his

child support obligation. In you Final Judgment, you found that insurance was

both available and affordable to John.

Questions:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

FACT PATTERNS #6c

Child Support

True or False? An attorney who willfully fails to pay his or her own court-

ordered child support may have his or her license to practice law suspended as a

result thereof.

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FACT PATTERN #7a

Injunction – Failure to Surrender Firearms

After a final hearing in a domestic violence injunction case where both the

Petitioner and Respondent are present, the facts set forth in the Petition (see

below) were established and you are about to enter a Final Judgment.

The temporary injunction entered in the case prohibited him from possessing

firearms or ammunition:

The return service indicates that Respondent told the deputy that he did not

have firearms:

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FACT PATTERN #7a

Injunction – Failure to Surrender Firearms continued . . .

As you review the Final Judgment with the parties on the record, when you

ask the Respondent whether he has access to any firearms or ammunition, he

admits that he has not yet surrendered his firearms.

Question:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #7b

Injunction – Failure to Comply with Evaluation or Counseling Order

You have entered a Final Judgment for Protection against Domestic

Violence with Children and find that the Respondent must complete a domestic

violence intervention program. The following language is contained in the Final

Judgment (see below). The Respondent is specifically ordered to attend a

compliance hearing if no proof is timely submitted. At the time of the compliance

hearing, no proof of compliance has been submitted to the Court or Clerk and the

Respondent fails to appear for his compliance hearing.

Question:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

4. Evaluation/Counseling

a. Court’s Findings re Mandatory Criteria

With regard to the following criteria, the Court finds that Respondent has

i. willfully violated the ex parte injunction;

ii. been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a

threat of violence; and/or

iii. in this state or any other state, had at any time a prior injunction for protection entered against the Respondent

after a hearing with notice.

b. Court-Ordered Evaluations and/or Counseling

The Court FINDS that the Respondent meets any of the above enumerated criteria, and, as a result, the Court

must order the Respondent to attend a batterers' intervention program, unless it makes written factual findings

stating why such a program would not be appropriate. See Section 741.30(6)(e), Florida Statutes.

Not in Jail: Within 10 days of the date of this injunction, the Respondent shall enroll in and thereafter

complete without delay the following programs or evaluations listed below. The Respondent shall provide proof of

enrollment to the Clerk of Circuit Court within 30 days of the date of this injunction:

A certified batterers’ intervention program from a list of programs provided by the Court attached to this

injunction or any entity designated by the Court. Respondent shall also successfully complete any substance abuse or

mental health evaluation that the assessing program counselor deems necessary as a predicate to completion of the

batterers’ intervention program.

c. Other: THE RESPONDENT IS REQUIRED TO PRESENT A COPY OF THE PETITION IN THIS CASE AS WELL AS A COPY OF

THIS FINAL JUDGMENT OF INJUNCTION TO THE PROVIDER(S) TO ASSIST WITH THE EVALUATION.

DIRECTIONS TO PROVIDERS(S): YOU MAY EMAIL THE COURT THE RESPONDENT’S PROOF OF COMPLIANCE AT

[email protected]. PLEASE WRITE THE RESPONDENT’S NAME AND CASE NUMBER IN THE

SUBJECT LINE:

Example: 2016 DR 001234 – Respondent Jones’ Proof of Compliance.

d. Although Respondent meets the statutory mandate of attendance at a batterers’ intervention program, the Court

makes the following written findings as to why the condition of batterers’ intervention program would be

inappropriate: NONE

e. Petitioner is referred to a certified domestic violence center and is provided with a list of certified domestic violence

centers in this circuit, which Petitioner may contact.

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FACT PATTERN #7b

Injunction – Failure to Comply with Evaluation or Counseling Order continued

f. Respondent to Attend Mandatory Compliance Hearing before the Court

The Respondent shall attend the following hearing to establish compliance with the special terms related to

evaluations and counseling.

Date TUESDAY, AUGUST 15, 2017, 11:00 AM

Time 11:00 am

Judge Donna Padar Berlin

Location Courtroom 5A, Silvertooth Judicial Center

2002 Ringling Blvd., Sarasota, FL

Compliance Enrollment in Certified Batter’s Intervention Program

The Respondent is required to appear unless written proof is filed with the Clerk at least five business days

before the hearing date. The written proof must be on the evaluator’s letterhead and signed by the evaluator and

must include the Respondent’s name and this case number.

Failure to appear or provide proof of compliance will result in the issuance of an arrest warrant and incarceration

pending further proceedings.

If the evaluation or recommendations are unacceptable to the Court, the Court may order the Respondent to

appear at a hearing to ensure the Respondent has been

Appropriately evaluated and is receiving appropriate treatment.

The Petitioner is not required to be present at the hearing.

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FACT PATTERN #8a

Bad Behavior by Litigant in Court

After you granted the prior Injunction for Protection against Domestic

Violence and the Petitioner has left the courtroom, while you’re still on the bench,

the Respondent becomes irate and starts muttering unintelligible statements under

his breath. In an effort to calm him down, your bailiff starts talking to him. The

Respondent becomes increasingly more agitated and then yells at your bailiff to

“GO &*%$ YOURSELF” and calls her the c-word. When you try to tell the

Defendant to lower his voice, show respect to the bailiff and behave appropriately

in the courtroom, he calls you a “SON OF A &$*%#” and tells you that “you had

no right to take his son away from me.”

Question:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?

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FACT PATTERN #8b

Bad Behavior by Attorney in Court

Attorney Jones appears before you on behalf of Jane Smith for yet another

post-judgment motion in the Smith case. It is 9 am and this is the first case of the

day. As the attorneys and parties settle into their chairs, you notice that Attorney

Jones appears disheveled and distracted. After a few minutes, your bailiff passes

you a note that she smelled cannabis emanating from Attorney Jones’ clothing and

alcohol (beer) on his breath when he said good morning. The hearing begins and it

becomes clear that Attorney Jones is struggling to present a coherent opening

statement. Jane Smith looks incredibly uncomfortable at her table. Opposing

counsel is looking at you with a look in his eyes that says “please make this stop.”

Question:

Identify whether a contempt issue exists and, if so, how should the court

address it?

If contempt is not available or sought as a remedy, what other methods of

enforcement are available?