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Attacking an expert witness - familylawfla.org

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By:Dori Foster-Morales, Esq.
Contemptandenforcement
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CONTEMPT
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A refusal to obey any legal order, mandate or decree, made or given by any judge relative to any of the business of the court, after due noticethereof. Fla. Stat. § 38.23
EVERY CONTEMPT IS EITHER:Direct or IndirectANDCivil or Criminal
TYPEs of contempt
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DIRECTCONTEMPTA contemptuous act committed in the immediate presence of the court.Pugliesev. Pugliese, 347So. 2d422(Fla. 1977).
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DIRECT CONTEMPT
INDIRECTCONTEMPTAn act committedoutside thepresence of the court.Pugliesev. Pugliese, 347 So. 2d422 (Fla. 1977).
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INDIRECT CONTEMPT
CIVIL CONTEMPTRemedialDesigned tocompelcompliancewithacourtorderorcompensate anaggrievedparty.Usedto coerce offending party into complying with court order rather than to punish offending party for failure to comply with courtorder.TheFlorida Bar v. Taylor, 648 So. 2d 709 (Fla. 1995).CRIMINAL CONTEMPTPunitiveDesigned to punish or vindicate the authority of the court.Used to punish anact tending to embarrass, hinder, or obstruct the court in the administration of justice or to lessen its authority or dignity.Richey v. McLeod, 188 So. 228 (Fla. 1939).
Civil vs. criminal CONTEMPT
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THERE CAN BE CRIMINAL CONTEMPT IN A CIVIL CASEORCIVIL CONTEMPT IN A CRIMINAL CASE
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CIVIL VS. CRIMINAL CONTEMPT
Parties’ parenting plan required that if either party travels out of state with the children, he or she must inform the other party 30 days beforehand and provide a travel itinerary.The Mother took two out of state trips but failed to provide the Father with notice of one of the trips or detailed itineraries.As a result, the Father filed a Motion for Contempt.Must the Court hold the Mother in contempt for violating the parenting plan?
HYPOTHETICAL #1: parenting plan
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NOEvenwithout a valid reason to deny a contempt motion, there is no authority mandating that a trial court hold a party in contempt even based upon the movant's factually correct motion.Brooks v. Brooks, 164 So. 3d 162, 163 (Fla. 2ndDCA 2015).“[t]here is nothing thatrequiresa trial court to hold a person in contempt” for violating a time-sharing plan, and a trial court does not abuse its discretion simply by declining to do so.Milton v. Milton,113 So.3d 1040 (Fla. 1st DCA 2013).InBrooks, the trial court opted to not hold the Mother in contempt, not for lack of factual basis, but as a means of discouraging further vindictive and vexatious litigation between the parties.SeeBrooks v. Brooks, 164 So. 3d 162 (Fla. 2ndDCA 2015).
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ANSWER TO #1
Former Wife failed to comply with a number of court orders (nature of court orders not specified).The Court issued an order to show cause as to why the Former Wife should not be held in contempt andfollowing a hearing, the Former Wife was held in indirect criminal contempt.As a sanction, the court ordered that the Former Wife was to haveno further contact with the minor child until she complied with the court’s orders.The court did not make a finding that this “sanction” was in the best interest of the child.The Former Wife was not provided notice that the contempt proceedings could result in a change in timesharing.May the court prohibit contact between the Former Wife and minor child as a sanction for contempt?
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HYPOTHETICAL #2: APPROPRIATE SANCTIONS
NOContempt should not be used as a basis for change in timesharing.Achange to a child custody arrangementwhich prohibited the Mother from having contact with the minor child until she brought herself into compliance with court orders was not an appropriate sanction for the Mother’s indirect criminal contempt in violating court orders.Najeeullahv. Peraza, 159 So. 3d 278, 279 (Fla. 2ndDCA 2015)InNajeeullahv.Peraza, a change in custody was not an appropriate sanction for indirect criminal contempt where the mother was not provided with notice that the contempt proceedings could result in a change to the custody arrangement, and record did not contain finding that the change was in the best interests of the child.Najeeullahv. Peraza, 159 So. 3d 278, 279 (Fla. 2ndDCA 2015)
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Answer to #2
The parties divorced in 2010.Child support was ordered at $2,000 per month.Following entry of a final judgment, the Former Husband failed to and/or sporadically made child support payments over a period of approximately two years.The Former Wife filed a motion for contempt and sanctions.The court entered an order finding the Former Husband in contempt as he failed to make the required support payments and despite an apparent ability to do so.The order found that the Former Husband owed arrearages of $100,000, which exceeded the amount requested by the Former Wife in her motion for contempt.Was the court’s order proper?
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Hypothetical #3: CHILD SUPPORT
NORelief exceeding that which was pled is impermissible.Winton v.Saffer, 158 So.3d 703 (Fla. 3rd DCA 2015).Where the amount requested in the Former Wife’s motion for contempt and sanctions was considerably different from the amount awarded in the order, and no spreadsheet or written breakdown of the computations was admitted into evidence, the amount awarded thus exceeded the amount calculable on the records and exceeded the amount recoverable based on the former wife’s pleadings.Wintonv.Saffer, 158 So.3d 703 (Fla. 3rd DCA 2015).
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Answer to #3
The Parties entered into a timesharing agreement which provided under a section entitled “Winter Break” that the “[t]he Mother shall have the children during the time where a caregiver is needed if she is not working” and the regular schedule will be in place otherwise.The children had a day off from school in October, a day in which the Father was otherwise scheduled to have the children.The Father stayed with the children on October 16th.The Mother filed a motion for contempt alleging that the Father intentionally withheld the children from her on a day they did not have school. The trial court granted her motion.Was the trial court correct in holding the Father in contempt for his failure to deliver the children to the Mother?
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Hypothetical #4: timesharing agreement
NOThere is no contempt for failure to comply with something an order does not say.Father’sfailure to deliver children to mother on single day in October in which children had no school did not violate “Winter Break” provision of timesharing agreement stating that mother would have children during time where a caregiver was needed if she was not working. No contempt for failure to comply with something an order does not say.Turk v. Turk, 189 So. 3d 359 (Fla. 4th DCA 2016).The Former Wife attemptedto hold theFormer Husbandin contempt for enrolling their child in day care in Boynton Beach, near his place of employment. The trial court granted theFormer Husband's MotiontoDismiss. The Appellate Courtaffirmed,as contempt could not lie where theFinalJudgmentofDissolutiondid not expressly address day care.Caputo v. Caputo, 189 So. 3d 1003,(Fla. 4th DCA 2016).
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ANSWER TO #4
The Parties entered into a Marital SettlementAgreement.As part of equitable distribution, the Husband was required to transfer a portion of his monthly pension payments to the Wife.The trial court’s order made such pension payments enforceable through the court’s contempt power.May the Husband be held in contempt for failing to pay these court ordered pension payments?
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Hypothetical #5: division of pension
NODebts not involving support cannot be enforced by court’s contempt power.The contempt power of the Courtcannot be invokedfor thesettlement of propertyrights as opposed to alimony, support or maintenance of one to whom the duty is owed. Paymentsfor equitable distributionare notenforceable bycontempt.Farghaliv.Farghali, 187 So. 3d 338 (Fla. 4th DCA 2016).No person shall be imprisoned for debt, except in cases of fraud. Fla. Const. art. I, §1.If substance of a provision in divorce judgment requiring payment is found to be in the nature of support, rather than an exchange for a property interest, failure to make payment may be enforced by remedy of civil contempt.Farghaliv.Farghali, 187 So. 3d 338 (Fla. 4th DCA 2016).
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Answer to #5
During pendency of divorce proceedings the trial court ordered the Husband to pay child support in the amount of $1,000 per month from October 2015 through February 2016.At the end of January, 2016 the Wife filed a verifiedemergencymotion for contempt and to compel the Husband to pay child support.A few days later the judge’s judicial assistant requested that the Wife’s attorney send a proposed order on the Wife’s emergency motion.The Husband’s attorney filed a response and objected to the matter being treated as an emergency.The following day, without a hearing, the Judge entered an order granting the Wife’s motion.Was entry of the court’s order on contempt proper under these circumstances?
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HYPOTHETICAL #6:child support
NOA person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.Failure to give notice of a hearing tothe opposingparty absent a true emergency deprives that party of procedural due process. A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.Hurst v. Hurst, 192 So. 3d 1262 (Fla. 5th DCA 2016).
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ANSWER TO #6
Theparties entered into aMarital SettlementAgreementthat was incorporated into a Final Judgment in2008.Five years later the Former Husbandwas approximately $310,000 behind on his alimonypayments.Theparties stipulated to the entry of a judgment forarrearages.When the Former Husbanddid not pay this judgment,the Former Wifesought a civil contempt order to compel him topay.The Court entered an Order stating in part thatIf Former Husband has not purged himself of said contempt within the time frame specified in this paragraph, he shall report to the Pinellas County Jail on the 16th day ofeach and every month beginningFebruary 1, 2017,at 5:00 p.m., then and there to commence serving said sentence.Canincarcerationbeimposed as a sanction for civil contempt inaprospectivefashion?
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HYPOTHETICAL #7: ALIMONY
NOIncarceration cannot be imposed as a sanction for civil contempt in such a prospective fashion as it is violation of due process.Acivil contempt order that operates prospectively, by ordering the automatic issuance of a committal order in the event of future noncompliance without requiring an additional hearing, violates due process and is improper.Bryan v.Jemal, 198 So. 3d 723 (Fla. 2ndDCA 2016)A contemptorderthat providesfor automatic incarceration if contemnor defaults infuture is prohibited.Becausethe contemptorder operated prospectively in that it ordered automatic incarcerationof thehusband on future noncompliance by him withoutrequiring anadditional hearing, the order violated due process and was required to be reversed.Bryan v.Jemal, 198 So. 3d 723 (Fla. 2ndDCA 2016)
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Answer to:#7
The trial court held theFormerWife in contempt and ordered her to pay the FormerHusband’s legal fees to purge the contempt.The basis of the court’s finding that the Former Wife had the ability to pay the Former Husband’s fees was that she had the ability to borrow the money from her father.Can thecourtorder the Former Wife to pay the Former Husband’s fees due to a finding of abilityto paybased on her ability to borrowmoney froma relative?
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HYPOTHETICAL #8: legal fees
NOThefinding that Appellant has the ability to pay the fees because she can borrow the money from her father cannot support the conclusion that she has the ability to pay the fee.Kitchens v. Martin, 186 So. 3d 24 (Fla. 5thDCA2016).Errorto base conclusion of ability to pay on finding that party may borrow money fromrelative.Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990).
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ANSWER TO#8
The parties,bothJewish, divorced in 2011.They hadtwo minor children.TheirMaritalSettlement Agreementprovided for shared parental responsibility andthatmajor decisions regarding the welfare of the children, including religious upbringing, would be made jointly whenever possible.The Father subsequently filed a motion for contempt and stated that the Mother was unilaterally making major decisions regarding the children’s religious practices. He alleged that sheunilaterally enrolled the children in an Orthodox religious aftercare program and was following Orthodox Jewish law and customs without his input or agreement.At the hearing on the motion for contempt, the Father testified that the partiespracticed Reform Judaism during themarriage. The Motherdisagreed. She testified that the children had attended conservative and Orthodox temples during the marriage.Thecourt found theMotherin contempt for unilaterally changing the religion of the minor children. The order provided that the children will be raised under Reform Judaism unless the parties reach another agreement. The court explained that “Former Wife/Mother is free to practice any religious beliefs she wishes, but cannot unilaterally modify the children's beliefs and practices or have the children follow her beliefs and practices when they are residing with her.”Does the contempt order erroneously impinge on the Mother’s religious freedom?
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HYPOTHETICAL #9: parenting plan
YESTrial court may not restrict parent’s exposure of his or her child to parent’s religious beliefs unless there is affirmative showing that religious activity is harmful to child.A trial court cannot preclude the custodial parent of one religious faith from actively influencing the training of the child inconsistently with the different religious faith of the other parent, and require the custodial parent to raise the child in the other parent's faith and cooperate with the other parent in effecting the result.Steinman v. Steinman, 191 So. 3d 954 (Fla. 4th DCA 2016).It was error for the court to find the Motherin contempt for making major decisions concerning religion and religious education of parties’ children in contravention of marital settlement agreement between parties that required joint decision making regarding children’s religious upbringing.The trialcourt may not restrict parent’s exposure of his or her child to parent’s religious beliefs unless there is affirmative showing that religious activity is harmful to child.Steinman v. Steinman, 191 So. 3d 954 (Fla. 4th DCA 2016).
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ANSWER TO#9
A Final Judgment of Dissolution of Marriage was entered in which jurisdiction over the Husband was obtained through publications of notice and constructive service of process.The Husband never appeared in the dissolution of marriage proceedings and a default was entered against him.The Final Judgment awarded the Wife attorney’s fees and costs.The Wife then sought to enforce this provision of the Final Judgment through contempt.Can the Wife seek to enforce such attorney fee provision of the Final Judgment through contempt proceedings?
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Hypothetical #10: attorney’s fees
NOThe trial court lacked jurisdiction to hold the Husband in contempt because it had no personal jurisdiction of the Husband when the Final Judgment was entered.Steffens v. Steffens,593. So. 2d 1156 (Fla. 2ndDCA 1992).Contempt order issued by trial court based on failure to follow underlying order that was entered when the court lacked subject matter jurisdiction was reversed.Synchron, Inc. v.Kogan, 757 So. 2d 564 (Fla. 2ndDCA 2000).“Disobedienceof void order, judgment or decree, or one issued by a court without jurisdiction of the subject matter and parties litigant, is not contempt.”Synchron, Inc. v.Kogan, 757 So. 2d 564 (Fla. 2ndDCA 2000).
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Answer to #10
WHAT’S THE EASIEST WAY TO AVOID CONTEMPT?
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Attacking an expert witness - familylawfla.org