Posted by Nydia Streets of Streets Law in Miami Alimony
Finding oneself on the receiving end of a motion for contempt can be a nerve-wracking experience, especially when punishment for contempt can range from fines to incarceration. We review a man's decision to appeal a finding of contempt against him based on his failure to pay alimony while he was at the same time trying to modify his obligation.
In Carter v. Hart, 5D17-1189 (Fla. 5th DCA 2018), the former husband sought to reduce his alimony obligation. While his petition for modification was pending, the former wife filed a motion for contempt alleging the former husband stopped making his alimony payments. Ultimately, the former husband's petition for modification was denied and he was found in contempt for failure to pay the alimony.
The former husband appealed and argued the court made an error in holding him in contempt where the former wife did not include in her motion language specified in the Florida Family Law Rules of Procedure which state: "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."
In denying the former husband's appeal, the appellate court held, "Here, Former Husband [. . .] 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 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."
The lesson: If you do not properly object at a hearing, you may forgo your appellate rights. A Miami spousal support lawyer can help you determine if you have grounds to modify your alimony and help you preserve your appellate rights. Schedule a consultation to determine the best way to move forward.