Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Can an order of contempt be appealed in a Florida family law case? If the contempt order is entered pre-judgment, it is considered a non-final order which may only be appealed if it falls within the categories designated by the rules of appellate procedure as appealable non-final orders. The Fourth District Court of Appeal recently entered an opinion which recedes from prior case law on the issue of appealing non-final contempt orders. The opinion is Decius v. Decius, 4D22-3254 (Fla. 4th DCA April 12, 2023).
In this pending divorce case, the husband was ordered multiple times to provide documents related to property he owns in Haiti. The wife filed a motion for contempt, and at a hearing on the motion, the husband admitted that he had not provided any documents as ordered. The court therefore found him to be in willful contempt and sentenced him to 30 days in jail. The court ordered that the husband could purge himself of contempt if he produced the property records within 30 days. The order further stated “[l]aw enforcement shall take no action at this time pursuant to the ability to purge.” The husband appealed this contempt order.
The appellate court first noted “For pre-judgment contempt orders, two scenarios exist. In the first scenario, if the party found in contempt is taken into custody, then the proper method for seeking review is a petition for a writ of habeas corpus. See Elliott v. Bradshaw, 59 So. 3d 1182, 1183 n.1 (Fla. 4th DCA 2011). Here, the order states that ‘law enforcement shall take no action,’ so a petition for a writ of habeas corpus would be improper. The second scenario, where the party found in contempt has not been taken into custody, is before us. Rule 9.130(a)(3) provides an exhaustive list of nonfinal orders that can be appealed to the district courts of appeal. Contempt orders are not included on this list. Nevertheless, we have treated requests for appellate review of civil contempt orders issued prior to final judgments as permissible nonfinal appeals under Rule 9.130(a)(3).”
The court went on to hold “To initiate a ‘clean slate,’ we recede from our prior opinions permitting nonfinal appeals of all pre-judgment contempt orders. We join our sister courts in finding Rule 9.130(a)(3) does not authorize appeals of prejudgment contempt orders unless the sanction in the contempt order falls within one of Rule 9.130(a)(3)’s enumerated categories.” The court concluded “Here, the trial court found Appellant in contempt for failing to comply with a discovery order. That was all. There is no subsection of Rule 9.130(a)(3) that allows appeals of nonfinal orders finding contempt alone. We therefore sua sponte treat this “appeal” as a petition for writ of certiorari. See Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”). We recede from our caselaw inconsistent with this holding.”
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