Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
While we hope that divorcing couples can part ways amicably, that is not always the case. Unfortunately, the divorce court is sometimes put in the position of referee, having to enter orders that control the conduct of the parties toward each other. This is what happened in the case Ash v. Campion, 247 So.3d 581 (Fla. 1st DCA 2018).
At the time the parties divorced, the trial court entered an order requiring both parties to refrain from harassing each other by phone. Despite a final judgment of divorce being entered, the former wife continued to send harassing messages to the former husband which caused him to file a motion for contempt of the mentioned order. After a hearing, the former wife was held in contempt and ordered to pay $100,000 to the former husband as a sanction.
The former wife appealed. She did not deny that she violated the order. She instead argued that the trial court did not meet the prerequisites for holding her in criminal contempt. The appellate court first analyzed the difference between a civil contempt sanction and a criminal contempt sanction, holding “We can consider a contempt fine civil only if it coerces the defendant into compliance with the court's order or compensates the other party for sustained losses. [. . .] Rather than serve any remedial or compensatory purpose, the trial court's order "simply imposes a flat and unconditional fine," meaning it must be ‘considered a criminal sanction.’”
The court further held, “We cannot consider this fine a coercive sanction because it includes no purge provision: there was nothing Ash could do to avoid the fine after the trial court imposed it. A punishment (like a $100,000 penalty) might deter future noncompliance (just as prison terms might deter future crimes), but that does not make it a coercive civil sanction. Regardless, any valid coercive civil sanction order must include a purge provision. [. . .] Nor can we view this fine as a compensatory award. A contempt order designed to compensate must turn on ‘the injured party's actual loss.’ Campion argues here that the award sought to compensate him for emotional distress, but the record does not support that argument. There was no argument about loss below, there was no evidence about the value of any loss below, and the trial court made no findings about loss below.”
Therefore although the former wife was clearly in violation of the court’s order, because a procedural error was made, the court reversed the order of contempt and the former wife was not responsible for paying the $100,000 sanction. Consulting with a Miami family law attorney is important even when you feel your case is open and shut. An experienced lawyer can spot issues that may assist you in pursuing your case.