February 24, 2012

Everyone Gets Their Day in Court: Fourth DCA Reverses Civil Contempt Order For Failure To Hold Evidentiary Hearing

Leo v. Leo
Case No. 4D10-5127

In this family law appeal, appellant, Former Wife, appealed an order finding her in civil contempt. This appeal stemmed from a final judgment of dissolution of marriage between the appellant and the appellee, Former Husband. Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court. Former Husband’s attorney filed this motion alleging the Former Wife failed to return Former Husband’s belongings.

A hearing was scheduled on Former Husband’s motion for civil contempt but prior to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. Former Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful non-compliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

The court reviewed the record and found that even though relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. “A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 355 (Fla. 4th DCA 2007). Because that civil contempt order was entered without an evidentiary hearing, the Fourth District Court of Appeal reversed and remanded this matter.