FLORIDA CONTEMPT OF COURT

Civil and criminal contempt are available in both civil and criminal cases. [See Fla R Civ P 1.380, 1.410, 1.510, 1.570, Form 1.982; Fla R Crim P 3.830, 3.840.] The determination of whether contempt proceedings are civil or criminal goes to the nature of the allegedly contemptuous act and is not dependent on the nature of the cause from which the contempt citation arose. [Deter v. Deter, 353 So 2d 614, 616 (Fla 4th DCA 1977).]

The distinction between contempt proceedings which are civil and those which are criminal in nature is firmly established in Florida jurisprudence. The determination of whether contempt proceedings are civil or criminal goes to the nature of the allegedly contemptuous act and is not dependent on the nature of the cause from which the contempt citation arose. The purpose of civil contempt proceedings is to preserve and enforce rights of private litigants and to compel obedience to orders and decrees of the court made for the benefit of such parties. Criminal contempts are not delineated as such because the act involved is a crime, but rather because the primary purpose of such proceeding is to punish for disobedience to an order of the court and thereby to preserve the power and vindicate the dignity of the court. An indirect or constructive contempt occurs where acts constituting the contempt are committed out of the presence of the court. [Deter v. Deter, 353 So 2d 614, 616 (Fla 4th DCA 1977); see Bowen v. Bowen, 471 So 2d 1274, 1277 (Fla 1985) (purpose of civil contempt proceeding is to obtain compliance on part of person subject to order of court; purpose of criminal contempt, on other hand, is to punish; criminal contempt proceedings are used to vindicate authority of court or to punish for intentional violation of order of court); Fredericks v. Sturgis, 598 So 2d 94, 96 (Fla 5th DCA 1992) (to constitute direct criminal contempt, offending person must do something in trial court’s presence, if action occurs outside court’s presence, then it is indirect contempt).]

A court may hold a person or party in direct criminal contempt for the violation of a court order or for an act that is contemptuous on its face. Before assessing contempt sanctions for a violation of a court order, the trial court must first have issued a clear and unambiguous order as otherwise clearly established for the record the standards of conduct required by the court. [See United States v. Robinson, 922 F2d 1531, 1534–1535 (11th Cir 1991).] One may not be held in contempt of court for violation of an order which is not clear and definite so as to make the party aware of its command and direction. [Carnival Corp. v. Beverly, 744 So 2d 489, 496–497 (Fla 1st DCA 1999).]

In a civil contempt proceeding, before the trial court assesses a monetary fine, it must make a finding of contempt. [Stewart v. Jones, 728 So 2d 1233, 1234 (Fla 4th DCA 1999).] Penalties may range from monetary fines, to incarceration, to orders to otherwise comply with the order. [See Department of Children & Families v. R.H., 819 So 2d 858, 862 (Fla 5th DCA 2002) (there is wide array of sanctions that may be imposed for civil contempt including incarceration and imposition of fine).]

It is well-settled that incarceration cannot be used as a means of obtaining compliance with a court order in a civil contempt proceeding without first making an affirmative finding that the person has the present ability to comply with that order. [See Bowen v. Bowen, 471 So 2d 1274 (Fla 1985).] In the absence of such a finding, a coercive civil sanction is transformed into a criminal punishment which has been imposed in violation of the alleged contemnor’s constitutional rights. [Bresch v. Henderson, 761 So 2d 449, 450 (Fla 2d DCA 2000).]

Direct criminal contempt results from conduct committed in the actual presence of the judge. It may be punished summarily pursuant to Fla R Crim P 3.840. [See Gidden v. State, 613 So 2d 457, 460 (Fla 1993).] On the other hand, indirect criminal contempt concerns conduct outside the judge’s presence and may be punished only after following the procedures set forth in rule 3.840. [Kelley v. Rice, 800 So 2d 247, 251 (Fla 2d DCA 2001).]

The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Because incarceration is used solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor’s “key to his cell.” [Pugliese v. Pugliese, 347 So 2d 422, 424 (Fla 1977).] The purpose of criminal contempt, on the other hand, is to punish. Criminal contempt proceedings are used to vindicate the authority of the court or to punish for an intentional violation of an order of the court. [Pugliese v. Pugliese, 347 So 2d 422, 424 (Fla 1977).] Because this type of proceeding is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. [See Aaron v. State, 284 So 2d 673 (Fla 1973); see also Fla R Crim P 3.830, 3.840.] We continue to adhere to the view that incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door. [Bowen v. Bowen, 471 So 2d 1274, 1277 (Fla 1985); see Senterfitt v. Oaks, 775 So 2d 431, 433 (Fla 1st DCA 2001) (because incarceration can only be ordered for civil contempt when contemnor is able to purge himself of contempt, party without current ability to pay purge amount cannot lawfully be incarcerated as means of coercing payment).]

In the event that the trial court finds a defendant guilty of civil contempt for not obeying an injunction, then the contempt sentence which orders confinement must contain a purge provision which gives the respondent the key to his own jail. The order of contempt is entered by the court for the private benefit of the offended party. Such orders, although imposing a jail sentence, classically provide for termination of the contemnor’s sentence on purging himself of the contempt. The sentence is usually indefinite and not for a fixed term. Consequently, it is said that the contemnor carries the key to his cell in his own pocket. [Pugliese v. Pugliese, 347 So 2d 422, 424 (Fla 1977).] The purge provisions can come in the form of a monetary payment or taking some sort of positive or negative action. Once the defendant complies, the order must allow for the defendant’s release from confinement or avoidance of confinement. Incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door. [Bowen v. Bowen, 471 So 2d 1274, 1277 (Fla 1985).]

An injunction order cannot provide for an automatic fine or incarceration in the event that the enjoined party fails to comply. It is improper to provide for automatic incarceration in the event of future noncompliance with a court order without also providing for an additional hearing on ability to pay. [Samuels v. Grossman, 720 So 2d 297, 297 (Fla 1st DCA 1998).] The writ of attachment commands the appearance of the contemnor before the court so that the ability to pay a purge amount may be ascertained. This is so because incarceration for civil contempt cannot be imposed unless the trial court finds a present ability to purge himself of contempt. [Department of Revenue v. Meade, 827 So 2d 1093 (Fla 2d DCA 2002).]

If the court, in a civil contempt proceeding orders, a fine, then if the fine is coercive in nature, it must provide for its avoidance through obedience; if the fine is compensatory in nature, the amount must reasonably relate to the complainant’s losses as shown by the record. [Boca Raton Towing, Inc. v. Boca Raton Towing & Recovery, Inc., 729 So 2d 531 (Fla 4th DCA 1999).]

An aggrieved party, on motion to the court, may initiate an action for an order of civil contempt. [Fla R Civ P 1.100(b).] Nonetheless, according to the Fifth District Court of Appeal, nothing prohibits the initiation of a civil contempt proceeding by the filing of a rule to show cause. [Fredericks v. Sturgis, 598 So 2d 94, 98 (Fla 5th DCA 1992); see Fla R Civ P Form 1.982.] The motion must refer to the prior court order and briefly describe the nature of the violation. Service of the motion for contempt, which accompanies the notice of hearing, is also sufficient if served by mail. [State Department of Health & Rehabilitative Servs. v. Pierre, 625 So 2d 987, 988 (Fla 3d DCA 1993).] The respondent need not be served with process, but may be served by mail or by such other method as the court may direct which is reasonably calculated to convey notice of the proceeding and thus to afford an opportunity to respond and to be heard. [Apfelbaum v. Lord & Lady Originals, Inc., 317 So 2d 128, 129 (Fla 3d DCA 1975).] The notice must inform the respondent that the aggrieved party seeks an order to hold the respondent in contempt of court for violating a specific prior court order. [Allman v. Johnson, 488 So 2d 884, 885 (Fla 5th DCA 1986).] The motion must also inform the respondent of the date, subject matter, and manner in which the prior court order has been violated. [Fla R Civ P Form 1.982.]

Where a cause is pending or is not yet concluded, it is the attorney of record, not the respondent, who must be served. [Fla R Civ P 1.080.] Service of the motion for contempt, which accompanies the notice of hearing, is also sufficient if served by mail. [State Department of Health & Rehabilitative Servs. v. Pierre, 625 So 2d 987, 988 (Fla 3d DCA 1993).]

One who fails to obey a valid court order is always entitled to notice and a hearing in order to present any defense before being finally adjudicated in contempt. The court may not consider matters which have not been properly pleaded or noticed. [Allman v. Johnson, 488 So 2d 884, 885 (Fla 5th DCA 1986).] For a court to hold a party in contempt for a violation of its order there must be (1) a prior valid court order, (2) a motion and notice of hearing that relates specifically to that prior order, (3) proper service of the notice on the respondent, and (4) a hearing that affords the respondent an opportunity to present a defense for mitigation. [See Hoffman v. Hoffman, 718 So 2d 371 (Fla 4th DCA 1998) (court could not hold husband in contempt where husband was not given notice of wife’s desire to hold him in contempt); Allman v. Johnson, 488 So 2d 884, 885 (Fla 5th DCA 1986); Ginsberg v. Ginsberg, 122 So 2d 30, 31 (Fla 3d DCA 1960).]

The Fourteenth Amendment does not mandate court-appointed counsel for indigent contemnors in a civil contempt proceeding as long as the court makes a finding that the contemnor has the present ability to comply. [See Andrews v. Walton, 428 So 2d 663, 666 (Fla 1983) (person who cannot acquire funds to purge him or herself will not be subject to imprisonment in nonsupport civil contempt proceedings, therefore, fundamental fairness is satisfied and due process does not give rise to right to appointed counsel); see Scott v. Illinois, 440 US 367 (1979) (even under Sixth Amendment protections in criminal cases, actual imprisonment is line defining constitutional right to appointment of counsel).] In the absence of such a finding, a coercive civil sanction is transformed into a criminal punishment which has been imposed in violation of the alleged contemnor’s constitutional rights. If the trial court cannot make such a finding, then the sanction becomes criminal and the trial court would then follow the Florida Rules of Criminal Procedure. A contemnor facing criminal contempt charges has the same full range of due process rights as any other defendant in a criminal proceeding, including the right to counsel. [Bresch v. Henderson, 761 So 2d 449, 450 (Fla 2d DCA 2000) (such fundamental fairness includes providing alleged contemnor with adequate notice and opportunity to be heard); Moorman v. Bentley, 490 So 2d 186 (Fla 2d DCA 1986) (persons charged with indirect criminal contempt have constitutional right to counsel).]

The standard of proof varies depending on whether the trial court is considering a civil or criminal contempt matter. In a civil contempt proceeding, the standard of proof is a preponderance of the evidence. In a criminal contempt proceeding, the standard of proof is higher, the offending conduct must be provable beyond a reasonable doubt. [Department of Children & Families v. R.H., 819 So 2d 858, 861 n3 (Fla 5th DCA 2002); Kramer v. State, 800 So 2d 319, 320 (Fla 2d DCA 2001).] In the event the court proceeds with a criminal contempt proceeding, the parties should remember that such proceedings should be transcribed. The written contempt order resulting from a criminal contempt proceeding must include a judgment of guilt which recites the facts constituting the contempt, unless sufficient oral findings are made on the record. [Schmidt v. Hunter, 788 So 2d 322, 323 (Fla 2d DCA 2001); see Fla R Crim P 3.840.]

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