Quite often after the parties have divorced and moved on they may find themselves dealing with a post-dissolution Motion for Civil Contempt. This Motion should never be ignored and the allegedly offending party should be adequately prepared to defend against all the allegations that are being made in such Motion, especially since incarceration is one of the several sanctions that is often sought for the purposes of obtaining compliance. The other sanctions include attorneys’ fees, suit money and costs, compensatory or coercive fines, and any other coercive sanction or relief permitted by law.
This type of Motion is generally filed by one party against the other when the other party has either failed to act or has taken action contrary to the parties’ final judgment. Since a final judgment usually incorporates the parties’ property settlement agreement and a parenting plan, if children are at issue, it could therefore be the party’s violation of the terms of the property settlement agreement or the parenting plan that has created a need for a contempt motion in the first place.
Once served with such Motion, it is best to try to cure the alleged default prior to the hearing on the matter, determine whether the party bringing the Motion for Contempt is actually in breach as well and prepare a Response citing equitable defenses to strict compliance.
A civil contempt motion is generally governed by Fla. Fam. L. R. P. 12.615 and the Florida Supreme Court decision of Bowen v. Bowen and the cases that cite to Bowen. Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
Also, Motions that seek civil contempt for failure to pay support and those that are filed to obtain compliance with other obligations must be distinguished.
When contempt motion is filed for failure to pay support and incarceration is sought, it is important to keep in mind how “the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor’s “key to his cell.” See Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985) (citing to Pugliese v. Pugliese, 347 So. 2d 422, 424 (Fla. 1977)). The Bowen Court went on to state how “incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door.” Id. The Bowen Court went on to lay out the correct procedure for establishing civil contempt in family support matters. Specifically, the Bowen Court has stated how:
[i]n these cases, the initial order or judgment directing a party to pay support or alimony is predicated on an affirmative finding that the party has the ability to pay. This initial judicial determination creates, in subsequent proceedings, a presumption that there is an ability to pay. In a civil contempt proceeding for failure to pay child support or alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has failed to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order. In determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.
Although incarceration cannot be used as a means to seek compliance with the court order when the contemnor does not have the ability to purge himself of contempt, the court does have available other means to obtain compliance. If, for example, the defaulting party has willfully neglected his support obligations but no longer has a present ability to pay because he is unemployed, the court may direct him to seek employment … and to report weekly until employment is secured, in addition to requesting the employment service to periodically report to the court on the status of his job search. If the party is employed but presently lacks funds or assets, the court may issue a writ directing his employer to garnish the party’s salary in order to satisfy the alimony or child support obligations … or may enter an income deduction order for payment of child support or alimony. These alternatives to incarceration are examples and are not intended to limit the trial judge’s discretion in obtaining compliance with a court order.
In summary, [the Court held how]: (a) [i]n … civil … contempt proceedings, a prior judgment establishing the amount of support or alimony to be paid creates a presumption that the defaulting party has the ability to pay that amount. (b) In civil contempt proceedings, the defaulting party has the burden to come forward with evidence to dispel the presumption that he had the ability to pay and has willfully disobeyed the court order. In the event contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order. …
Id. at 1278-80. (internal citations omitted).
Just to reiterate, if you are faced with a Motion for Civil Contempt, it is important to keep in mind how a “contempt proceeding is [something that] ordinarily [is] instituted by one of the parties to the litigation who seeks to coerce another party to perform or cease performing an act. [If an] order of contempt is entered by the court, [it would be] for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor “carries the key to his cell in his own pocket.” See Pugliese v. Pugliese, 347 So. 2d 422, 424 (Fla. 1977).
In cases where contempt is sought for matters other than failure to pay support, the original order must be carefully reviewed for clarity. It is not uncommon for the parties to settle their issues in haste for closure and peace of mind to then be forced to revisit the language of their original order after a motion for civil contempt has been filed to only find out how that original language lacks the necessary specificity to place the parties on notice as to their respective obligations on a specific issue.
In these cases where the original order is not sufficiently clear, the Courts have held how “the finding of civil contempt is premature because the [original order] is not sufficiently clear. … An order that is indefinite or ambiguous may not be enforced by contempt.” Gerber v. Gerber, 2014 WL 5900055 (Fla. 2d DCA 2014) (citing Thompson v. Plowmaker, 681 So. 2d 727, 728 (Fla. 2d DCA 1996) and Loury v. Loury, 431 So. 2d 701 (Fla. 2d DCA 1983)).
The DeMello Court has also found how a court cannot find a party in contempt if the prior order is not clear and definite so as to make the allegedly offending party aware of its command. DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005) (quoting Keitel v. Keitel, 716 So. 2d 842 (Fla. 4th DCA 1998) in stating how “[w]hen a final judgment or order is not sufficiently explicit or precise to put the party on notice of what the party may or may not do, it cannot support a conclusion that the party willfully or wantonly violated that order.”)The Keitel Court further stated how a “judge cannot base contempt upon noncompliance with something an order does not say.” See Keitel v. Keitel, 716 So. 2d 842, 845 (Fla. 4th DCA 1998). A party 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 the party aware of its command and direction. Id. at 844.
Finally, the allegedly offending party must be aware of the equitable defenses of unclean hands and laches that may be available to that party and, if these two defenses are in fact applicable, they should definitely be brought up in Court and in any Response that might be submitted. Additional defenses might also be available and should likewise be raised in Court or in a Response.
Even if the moving party’s allegations appear to be unfounded or otherwise without merit, the responding party should never ignore a contempt motion and should do his or her best to prepare, and, if necessary, bring his or her own contempt motion against the moving party.