How To Defend Yourself In Contempt Of Court Hearings

Transcription

The Pro Se Self-help Guidebook Series
How To Defend Yourself
In Contempt Of Court
Hearings
Panama Publishing, Inc.
www.panama-publishing.com
Books by Panama Publishing, Inc
Pro Se Self-Help Guidebook Series:
How To Modify Alimony Payments
How To Appeal In State District Courts
Jail: An Inmates Survival Guide
The above books are available on our site at:
Pro Se Self-help Guidebook Series
How To Defend Yourself In
Contempt Of Court Hearings
The scales of Justice have gone to far out of balance
with the present Alimony laws.
Copyright © 2007, Panama Publishing, Inc.
All Rights Reserved. No part of this book may be used or
reproduced in any manner whatsoever without written
permission except in the case of brief quotations used in
articles and reviews.
First edition, September, 2007
.... ours is a sick profession marked by
incompetence, lack of training, misconduct and
bad manners. Ineptness, bungling, malpractice
and bad ethics can be observed in court houses
all over this country every day ... these
incompetents have a seeming unawareness of
the fundamental ethics of the profession.
--Chief Justice Warren Burger
Table of Contents
Preface ..................................................................................... 1
Introduction ............................................................................ 5
Contempt Defined ................................................................ 11
Contempt Generally ........................................................... 12
Types Defined.................................................................... 13
Criminal Contempt ......................................................... 14
Direct Contempt ............................................................. 14
Indirect Contempt .......................................................... 14
Standards of Proof.............................................................. 14
Criminal ......................................................................... 14
Civil................................................................................ 15
Procedure – Direct Civil Contempt.................................... 15
Civil Contempt in Support Matters.................................... 18
Converting Civil Contempt to Criminal Contempt............ 21
Governing Statutes............................................................. 22
Fulfilling Purge Requirements............................................ 26
Present Ability To Pay ................................................... 27
Imputed Income ............................................................. 27
Unemployed................................................................... 27
Under-employed ............................................................ 28
Joint Bank Accounts With Your Name On Them ........ . 28
Court Ordered Garnishment........................................... 30
Garnishment of Social Security ..................................... 37
Garnishing Pension And Other Benefits........................ 38
Other Tactics.................................................................. 39
Preparation For Research................................................... 41
Typical Documents Involved In Contempt Hearings ...... 47
Discovery Documents For Contempt Hearings ................. 50
Notice of Production from Non-Party............................ 52
Motions .............................................................................. 53
Motions to Dismiss ........................................................ 55
Motion for Extension of Time ....................................... 56
Motion for Phone Appearance ....................................... 57
Motion for Referral to General Master .......................... 57
Appendix to Motions ..................................................... 59
Notices ............................................................................... 60
Notice of Compliance .................................................... 60
Notice of Hearing Before General Master ..................... 61
Notice of Trial................................................................ 61
Miscellaneous Documents ................................................. 63
Certificate of Service ......................................................... 63
Documents For SPMA....................................................... 64
Supplemental Petition For Modification Of Alimony .. 64
Standard Family Law Interrogatories for Modification
Proceedings .................................................................... 66
Uniform Motion Calendar .................................................. 69
Tips On Preparing Documents ........................................... 73
Financial Affidavits ........................................................... 74
The Ex-spouse’s Financial Affidavit ................................. 77
Tactics And Techniques For Defense Against Contempt 79
Notice of Hearing ................................................................. 83
Preparing For Court............................................................ 91
Money in the Bank......................................................... 92
Credit Cards And Other Assets...................................... 93
Court Reporter ............................................................... 93
Court Hearing ...................................................................... 97
Procedures In Court ....................................................... 99
Incarceration ...................................................................... 105
Plan B............................................................................... 105
Habeas Corpus ................................................................. 107
Arrest Order Enforcement In Other States .................... 113
Request For Jury Trial...................................................... 115
In Closing............................................................................ 119
Appendices.......................................................................... 122
Referenced Links ......................................................... 122
Forum Resources ......................................................... 123
Sample Documents .................................................... 1235
Relevant Caselaw......................................................... 123
Applicable Rules of Procedure .................................... 123
Governing Statutes....................................................... 140
Index.................................................................................... 169
Disclaimers
The author is not a lawyer or in any way connected
with the legal profession and you need to know the following
by way of a disclaimer:
The information contained in this guidebook is
provided solely for entertainment, educational and
informational purposes. It is not intended to provide specific
legal advice or is it a solicitation for legal work. You are
always advised to seek the services of an attorney.
The events, situations, or suggestions mentioned in here
are the results of the author’s personal experiences and
opinions in filing documents on a pro se basis. This book
evolved from his lack of knowledge of the procedures and
requirements of the court system along with his desire to learn
what he needed to know in order to represent himself.
This book makes no attempt to offer any legal advice
but if you see something that is helpful, take it and use it to
your best advantage. It is mainly a compilation of observations
and techniques that have been acquired through extensive
practical experience. All items are factually correct to the best
of his knowledge and the opinions expressed are solely those of
the author.
1
Preface
W
hat is Pro Se? It is Latin "for himself," "on one's
own behalf" A person who represents himself in
court alone without the help of a lawyer is said to
appear “pro se.”
The Pro Se Self-Help Guidebook Series are written
mainly for the benefit of the person who doesn’t know their
way around the legal system, who doesn’t have the ability to
afford a lawyer, and who has no other avenue of help other
than to try to face the court by themselves.
Even if you can afford a lawyer, you can use this book
to help you to understand the process and procedures involved
with contempt of court hearings. It will provide a way to help
make you aware of whether or not your lawyer is covering all
the bases to help keep you out of jail. It will show you some of
the techniques that are available and might be used to facilitate
your defense.
Primarily, this book centers on how to deal with a
motion for contempt, contempt of court hearing, defenses used,
and procedures for alimony support problems.
Child support payments are not to be confused with
alimony support payments as they are another matter and are
not within the scope of this book. However, some of the same
2
techniques can probably be applied to contempt hearings
involving child support since the court will also be looking to
your ability to pay and for ways to coerce you to comply with
their orders.
The goal of this book is to provide you with enough
information and examples to enable you to respond to a motion
for contempt from your ex, which is usually followed by a
notice of hearing for that motion. It will help you to understand
what you will be facing and some of the other documents and
procedures with which you might become involved.
Additionally, it will help to prepare and guide you for the trial
where the judge will render a ruling as to whether or not to
hold you in contempt of court and possibly have you
incarcerated until you pay a purge amount of money.
This book evolved as a result of the author’s
experiences with his own as well as other individual’s cases
involved with the contempt of court procedures. It was felt that
these experiences would help people like you because a lot of
the things that were learned were not readily available but only
found out through trial and error. This is not the best way to
learn the legal process.
Since you are acting without a lawyer, most likely, your
ex-spouse will have one. If you do nothing to put up a defense,
you will be at a distinct disadvantage. It could end up costing
you money in the form of an immediate purge amounts to pay
for delinquent support payments to avoid being held in
contempt of court. Also, you might end up paying the other
side’s legal fees for having had to file motions for contempt
against you.
Knowing that you don’t have a lawyer will throw the
other side off balance when you suddenly start defending
yourself and showing them that you know how to play the legal
game and are not going to lie down and let them run all over
you.
In this situation, knowledge is power and it will
definitely help you to know the rules and procedures involved.
It certainly is advantageous when you know how the
3
opposition will come at you and some of the things you can do
to defend yourself. This book will educate and guide you in
this area by showing you examples of what the author used in
his defense.
If you decide to proceed with a pro se representation of
yourself, what you will be saving in lawyer’s fees, you will
have to compensate for by putting in the time to learn and find
out how to create your own documents. One of the main
advantages of learning is that it will take you out of the dark
about legal procedures and put you on a more even footing
with the other side.
While this guidebook will not answer your every
question or handle every situation, it will provide a basic
starting point to help you through a straightforward basic
defense “if you have a legitimate reason for being in arrears
on your alimony payments.” To a judge, your having a
provable “inability to pay” is a legitimate reason to avoid
incarcerating you.
Don’t bother to ask any of the court sponsored “selfhelp centers” or clerks of the court anything about the law as
all you will get are statements to the effect that: “we are not
allowed to give out any legal advice.” There is very little help
available for people who can’t afford a lawyer and are trying to
represent themselves.
There are a number of places where you can go for
assistance from people who have run the gauntlet of the family
law courts and who belong to Internet forums. You will be
surprised at the amount of help you can get from these. One of
the foremost ones in the country can be found at:
http://groups.yahoo.com/group/cflap_org/. Others can be found
in the appendix.
In addition, you will find the web a good source of
information, especially if you use something like Google or
other major search engine to find what you are looking for.
As the writer of this book, I am not a part of the legal
system but one of its victims. My goal is to see that others are
4
made aware of how to fight back on a pro se basis when they
can’t afford a lawyer.
This book makes no attempt to offer any legal advice
but if you see something that is helpful, take it and use it to
your best advantage. It is mainly a compilation of observations
and techniques that have been acquired through extensive
practical experience. All items are factually correct to the best
of my knowledge and the opinions expressed are solely those
of the author.
A website has been set up to support the chapters in this
book at: www.panama-publishing.com where you will find
samples of documents, caselaw, etc. as further illustrations of
the examples in this book.
5
Introduction
"The minute you read something that you can't
understand, you can almost be sure that it was
drawn up by a lawyer.” --Will Rogers
F
acing a contempt of court hearing? What do you do
now? Do you have a chance of fighting back? How can
you find out what needs to be done to defend yourself?
Having a motion for contempt served on you can be
quite intimidating and you might feel it is beyond your
comprehension or ability to handle it. Don’t let this deter you
from giving it a try. In this country, acting as a pro se is your
right and is a guaranteed access to the court system. It can be
done quite successfully.
Basically, a motion for contempt is a move by the
opposing party to get you to comply with something a court
order has required you to do. It is not a hopeless situation for
you when this happens and there are ways to handle it. There
are occasions when even you can do the same thing in return to
the other party under the right circumstances.
Recently, a friend of mine called me to say that he was
going to a contempt of court hearing and that he was worried
about being incarcerated due to his deteriorated financial
situation that prevented him from making alimony payments. I
asked him what did his lawyer say. He replied that the lawyer
said that he had to come up with a purge amount that the judge
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will order of somewhere in the neighborhood of $35,000 or he
would go to jail.
This was unbelievable to me. My friend had paid this
lawyer $2,500 (that he could ill afford) and all the lawyer could
do for him was to tell him to pay whatever the judge ordered
even though he was unable to do so. He was offering the court
nothing in the way of a defense for my friend.
As I reflected on this, it occurred to me that the lawyers
know that, in front of certain judges, they pretty much know
how the judge will rule. They also know one side will win and
one side will loose. No matter who wins or loses, each lawyer
will collect a fee. Someone has to represent the losing side and
quite frequently the losing side has to pay for both lawyers.
Nothing would be easier to earn a fast buck than to
collect a retainer up front and then tell a client he has to pay the
amount the judge orders without any effort on the lawyer’s part
to provide a defense for the client. What kind of service does a
lawyer do for their client in that circumstance??
What an easy way for an unscrupulous lawyer to walk
away with his fee without having done any work for it. And
would the client have any way of knowing whether or not what
the lawyer said was accurate or if anything could be done to
defend him against a contempt ruling? That’s right, you would
have little way of knowing unless you read this book.
What could that lawyer have done? Find out in the
following chapters. It will be the same thing you can do
yourself.
Do not get the impression that I think all lawyers are
bad. There are good lawyers who make the effort to represent
and defend their clients and there are the ones who don’t.
Finding a good one can be like playing Russian roulette with
your finances. How do you know if the one you have selected
is one of the good ones? You don’t unless they come
recommended by someone you know and trust has used them.
A lot of lawyers are honest, hard-working individuals
just working within the system that was created by others.
There are even a number of them that are fighting for reforms
7
of the system to make it more equitable and eliminate the
injustices. My thanks go out to them.
Events and happenings that you will encounter will give
you the impression that they “aren’t fair” or that “that can’t
happen in America.” Don’t waste your time trying to delve into
the philosophical aspects of these thoughts. In family law, you
will find that all the things that you have come to believe in as
regards “justice and fairness” will appear to have been
abandoned and that the family law system is a place where you
will be placed in the “Twilight Zone” for possibly the rest of
your lifetime.
Instead, concentrate on spending your time working
within the system to defend and protect yourself, your assets,
and your peace of mind. The reality of the situation is that the
rules of the game are in place and you will have to find your
way to work with them and around them to best of your
capability. Just knowing what you face and the rules of the
road will take a big load off your mind.
Keep in mind that even though the other side is
supposed to play by the rules, they frequently don’t and they
will try to use your ignorance of the law and representing
yourself against you. If you show them that you are aware of
what is going on and in turn by your going on the offensive;
you stand a chance of drastically change the dynamics of the
case.
One of the things I have found regarding lawyers with
whom I have had opposing me is that they tend to be
accustomed to working with other lawyers or dealing with pro
se opponents who don’t know the rules. Working on a lawyerto-lawyer basis, they make some common mistakes knowing
the other side won’t say anything. With a pro se, I feel they
make the same mistakes thinking that the pro se won’t know
any better and be overwhelmed with technical jargon and
procedures. This overconfidence can work to your advantage.
Remember: knowledge will be your ally and your
companion in battle! Knowledge can be acquired if you
commit yourself to the job of doing so.
8
The law and the procedures are not rocket science nor
are they life threatening as if you were going to do major
surgery. The worst that will happen is that the judge will rule
against you and you stand a chance of either paying what you
owe or going to jail. But if you unable to pay, are acting in
good faith and can follow the simple guidelines presented
herein, you will put the odds in your favor of prevailing.
With a little effort and participation on your part, you
will be able to save a lot of money in legal fees (that you
probably cannot afford in the first place) in addition to getting
a better understanding of the legal process and gaining control
over your situation and your future.
If you decide to proceed with your own defense, it will
be necessary for you to learn the rules and procedures of the
court. What you will be saving in money that you would have
had to pay for a lawyer, you will have to compensate for it by
putting in the time to learn. One of the main advantages of
learning is that it will take you out of the dark about legal
procedures.
There are a number of places where you can go for
information and suggestions from people who have run the
gauntlet of the family law courts and who belong to the various
forums. A list of them along with other resources can be found
in the appendix.
In addition, you will find the web a good source of
information, especially if you use something like Google or
other major search engine to find what you are looking for.
Author’s Note: While Florida is as the base for this
book and all the examples, the same laws and
procedures could just as well apply to other states. You
will need to check out them first.
This report makes no attempt to polarize genders, as
both are susceptible to this intrusion into your lives. To
maintain the adversarial nature of proceedings, the courts
typically portray women as the party needing alimony and
9
needing preferential treatment. Who wouldn’t side with a Mom
with children? It’s natural for them to use this public reaction
to their advantage. But this report isn’t gender oriented in its
intent or content even though the system appears to be oriented
in favor of the women.
Traditionally, men have borne the responsibility of
paying alimony, but that is not necessary in today’s society.
With women enjoying the benefits of equality and increased
parity in the workplace, their income can often be greater than
that of the men. When this situation exists, the shoe is on the
other foot and alimony judgments (if applied on a gender
neutral basis) will be placed on them instead.
Now you are ready to understand the basics of
contempt hearings and how to defend yourself which will be
covered in the next chapter.
10
11
Contempt Defined
A
n ex-spouse has filed a motion for contempt of court
against you. What constitutes contempt? What can
they do to you? What can you do?
First, you should be aware of exactly what contempt is,
its definition and how the courts will look at to you and your
ability to pay. There are possibly some loopholes and defenses
you can use, but you first have to know how the opposition is
coming at you, what rules govern your situation, what they can
do, and then you can prepare your defenses.
Usually, you will be facing a simple civil contempt and
that is what we will focus on in this book. Should the occasion
arise where it turns into criminal contempt, then the court will
be faced with providing you with “due process of law” the
same as they would any criminal. e.g. appointing a public
defender if you can’t afford one, trial by jury, etc.
As you will find out, in family law civil contempt, you
have fewer rights than a criminal. Criminal defendants are
assumed innocent until proven guilty, provided a public
defender at taxpayer expense, given a trial by jury and given
every consideration to guarantee that their civil or
constitutional rights aren't violated in the process of
ascertaining their guilt. If they are convicted, they receive a jail
term that is for a definite period of time.
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However, a person under civil contempt gets none of
these privileges and can even be deprived of their children,
their home and life savings, and their freedom with none of
these constitutional protections.
Despite prohibitions on incarceration for debt, a spouse
can be jailed for failure to pay not only child support and
alimony but also the fees of lawyers, psychotherapists and
other professionals they have not hired. A judge can take a
legally unimpeachable citizen who is minding his own business
and order him to turn over his earnings or go to jail over
alimony.
Understanding Contempt
First, you need to understand what contempt is, what
types there are, and how they are used. The Following
excerpted text is an explanation of Contempt as defined by The
Honorable Carolyn K. Fulmer, Florida District Court of
Appeal, Second District, March 1999, Revised and Updated by
Judge John C. Lenderman February 2002. (Full report on
website)
Important sections have been emphasized in bold print.
Some of these can be used in planning your defense. If you
don’t understand the legal cites (citations such as Parisi v.
Broward County, 769 So.2d 359 (Fla. 2000) don’t worry about
it. You will be told later how to do so.
A.
CONTEMPT GENERALLY
Any act which is calculated to embarrass, hinder or
obstruct the court in the administration of justice, or which is
calculated to lessen its authority or dignity. This includes but
is not limited to a willful refusal to obey any legal order,
mandate or decree made or given by any judge. See Ex
Parte Earman, 85 Fla. 297, 95 So. 755 (1923); section 38.23,
Florida Statutes.
13
Courts have the authority to enforce a judgment by the
exercise of their contempt powers. They are granted this
contempt authority because orderly government demands that
respect and compliance be given to court orders. Parisi v.
Broward County, 769 So.2d 359 (Fla. 2000).
The definition of criminal contempt is not restricted to
a violation of an order per se. The test in determining whether
conduct constitutes criminal contempt is whether the conduct
interferes with or impugns the judicial function, not whether it
causes a particular judge to feel aggrieved or vexed. Thomas
v. State, 752 So.2d 679 (Fla. 1 DCA 2000).
Ambiguous Orders: Ambiguous, implied or inherent
provisions of a final judgment or order cannot serve as a basis
for an order of contempt. Keitel v. Keitel, 716 So.2d 842 (Fla.
4th DCA 1998).
Erroneous Orders: Party may be held in contempt for
failing to comply with erroneous order. Rubin v. State, 490
So.2d 1001 (Fla. 3d DCA) rev. denied, 501 So.2d 1283 (Fla.
1986).
Intent: Intent to disobey court order is one of the
necessary elements of contempt. Power Line Components,
Inc. v. Mil-Spec Components, Inc., 720 So.2d 546 (Fla. 4th
DCA 1998). For example, late court appearance because of
car breakdown is not indirect criminal contempt. Werner v.
State, 740 So.2d 591 (Fla. 5 DCA 1999).
B.
TYPES DEFINED
A contempt is either civil or criminal and either direct
or indirect. The cause in which the contempt arises is not
determinative. For example, a criminal contempt may occur in
a civil proceeding. The distinctions are important because the
type of contempt governs the procedures that must be used to
14
institute and conduct the hearing, and the sanctions that may
be used. Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977).
1. Criminal Contempt
If the purpose of the contempt proceeding is to punish
for offensive conduct against the court, its judgments, orders or
processes, it is criminal.
2. Civil Contempt
If the purpose of the contempt proceeding is
remedial or coercive, it is civil. Civil contempt is usually
used to preserve and enforce rights of private parties to a
suit or to compel obedience to orders made for the benefit
of a party. Civil contempt may not be used to compel
payment of debt not considered support. Montanez v.
Montanez, 697 So.2d 184 (Fla. 2d DCA 1997).
3. Direct Contempt
If an act deemed contemptuous is committed in the
presence of the court (i.e., detected through the judge’s sense
of hearing, seeing, or smelling), it is direct.
4. Indirect (Constructive) Contempt
If an act deemed contemptuous is committed outside of
the presence of the judge, it is indirect. (E.g., if the judge does
not see, hear or smell the contemptuous act, it is indirect
contempt even if it is committed in the courtroom where the
judge is presiding.) Everyone must read Kelley v. Rice, 800
So.2d 247 (Fla. 2 DCA 2001) on the website.
C.
STANDARDS OF PROOF
1. Criminal
Although criminal contempt is not a statutory offense, it
15
is a common law crime in Florida. Persons accused of criminal
contempt are entitled to the same basic constitutional rights as
are those accused of violating criminal statutes. Aaron v. State,
284 So.2d 673 (Fla. 1973). Thus, the presumption of innocence
applies and the charge must be proved beyond every
reasonable doubt.
CASES: Burden of proof required in criminal contempt
proceedings is beyond a reasonable doubt. Kramer v. State, 800
So.2d 319 (Fla. 2d DCA 2001). To prove indirect criminal
contempt, there must be proof beyond a reasonable doubt that
the individual intended to disobey the court. Tide v. State, 804
So.2d 412 (Fla. 4 DCA 2001).
2. Civil
The contempt must be proved by a preponderance
of the evidence. There is no presumption of innocence. In
Interest of S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965).
D.
PROCEDURE-DIRECT CIVIL CONTEMPT
Note: See Florida Family Law Rules of Procedure
12.615 governing civil contempt proceedings in support
matters related to family law cases. (See Appendix )
1.
Motion and notice required:
See Fla.R.Civ.P. Form 1.982; Fla. Fam. L.R .P.
12.615(b).
a. Initiated by person having standing by serving
motion and notice on respondent or his/her counsel
b. Service by mail is sufficient. Spencer v. Spencer,
16
311 So.2d 822 (Fla. 3d DCA 1975), cert. denied, 328
So.2d 845 (Fla. 1975).
c. Service by publication is not permitted. Chapman v.
Lamm, 388 So.2d 1048 (Fla. 3d DCA 1980),
disapproved in part on other grounds, 413 So.2d 749
(Fla. 1982).
d. Notice must be reasonable. Hayman v. Hayman,
522 So.2d 531 (Fla. 2d DCA 1988) (notice received
morning of contempt hearing was not sufficient notice)
e. Motion and notice must specify acts claimed to
be contemptuous
f. Must specify time and place of hearing .
2. Hearing:
a. Court must inform respondent of allegations.
b. Moving party has burden of proof as in any civil
proceeding (preponderance of the evidence).
c. Once noncompliance is established or admitted,
burden shifts to respondent to show inability to
perform or excuse.
d. Respondent is not entitled to counsel because
proceedings are remedial and not criminal. Andrews
v. Walton, 428 So.2d 663 (Fla. 1983).
e. Appellant’s failure to provide transcript of civil
contempt proceeding barred review. Calicchio v.
Calicchio, 693 So.2d 1124 (Fla. 4th DCA 1997).
3. Fines:
17
f. A compensatory fine may be imposed to
compensate an injured party for losses. Fine must be
based on evidence of the injured party’s actual loss.
Johnson v. Bednar, 573 So.2d 822 (Fla. 1991) as
modified by International Union, United Mine Workers
v. Bagwell, 512 U.S. 821, 114 S. Ct. 2552, 129 L.Ed.2d
642 (1994). Only if the fine is compensatory is it
appropriate to dispense with a purge provision. Gregory
v. Rice, 727 So.2d 251 (Fla. 1999), citing Bagwell.
g. A coercive fine may be ordered to coerce
compliance. However, the court must consider (a) the
character and magnitude of the harm threatened by
continued contumacy, and (b) the probable
effectiveness of a particular sanction in achieving the
result desired. The court must also consider the
offending party’s financial resources and the
seriousness of the burden on that party. Parisi v.
Broward County, 769 So.2d 359 (Fla. 2000).
h. Coercive fines must have purge provision.
Gregory v. Rice, 727 So.2d 251 (Fla. 1999), citing
Bagwell. See "Purge" below under Rule 12.615.
i. "Bonded" fines are not permitted as civil contempt
sanctions. Post a bond or place fines in escrow pending
compliance. Parisi v. Broward County, 769 So.2d 359
(Fla. 2000).
j. Attorney’s fees may be awarded as sanctions. Lamb
v. Fowler. 574 So.2d 262 (Fla. 1st DCA 1991).
4. Incarceration
a. Incarceration may be ordered but ONLY if
purge provision is provided AND court finds that
18
contemnor has present ability to perform the purge.
Siegel v. Felcher, 636 So.2d 872 (Fla. 3d DCA 1994).
b. Period of incarceration should be indefinite.
Contemnor carries keys to cell in his own pocket.
Pasin v. Pasin, 480 So.2d 699 (Fla. 4th DCA 1985);
Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977).
5. Other Enforcement Sanctions
Lascaibar v. Lascaibar. 715 So.2d 1042 (Fla. 3d DCA
1998) (discusses enforcement alternatives. "In the enforcement
of a judgment entered in equity, a trial judge is limited only by
due process, in scope of its process, and because liberty is the
core value of the republic, in civil contemnor's ability to purge
himself of contempt by compliance. Other than those restraints,
the ability of the trial court to enforce its decree is fettered only
by a lack of imagination."); Mallardi v. Jenne, 721 So.2d 380
(Fla. 4th DCA 1998) (good discussion of ability to pay and
burdens of proof).
6. Judgment:
a. Must be in writing
b. Must be signed by judge
c. Must recite facts upon which contempt is based
d. Must contain purge provision and must contain
a finding that respondent has the present ability to
meet the purge. Bowen v. Bowen, 454 So.2d 565 (Fla.
2d DCA 1984).
e. May not order incarceration for future
noncompliance. Samuels v. Grossman, 720 So.2d 297
(Fla. 1st DCA 1998).
E.
CIVIL CONTEMPT IN SUPPORT MATTERS
19
matters related to family law cases. (See Appendix )
1.
Purpose
To compel compliance with court order, or to
compensate for losses sustained as a result of willful failure to
comply with order. See Giallanza v. DOR, 799 So.2d 256 (Fla.
2d DCA 2001).
2.
Initiated by motion and notice.
No civil contempt may be imposed without notice and
an opportunity to be heard.
a. May be served by mail “provided notice by mail is
reasonably calculated to apprise alleged contemnor of
pendency of the proceedings.” Notice must specify time
and place of hearing.
b. Motion must contain facts/acts amounting to
contempt
c. Motion must contain: “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. This notice must also state whether
electronic recording or a court reporter is provided
by the court or whether a court reporter, if desired,
must be provided by the party.”
3.
Hearing – STEPS
20
a. Court must first make express finding on proper
notice of motion and hearing.
b. Movant then establishes prior order, failure to pay
and arrearage amount.
c. If [defendant] not present, set reasonable purge. The
court may issue writ of bodily attachment directing
[defendant] be brought before court within 48 hours on
issue of present ability and willful failure to pay.
d. If [defendant] present, determine present ability to
pay and willful failure to pay arrearage amount.
4.
Order and Sanctions
Finding of contempt requires written order granting or
denying motion with factual findings:
a. Contemnor had notice of motion and hearing
b. Prior order was entered
c. Failure to pay
d. Had present ability to pay (remember statutory
presumption)
e. Willfully failed to pay comply with prior order
f. Recital of facts on which findings are based. If court
grants motion, court may impose appropriate sanction,
including:
g. Incarceration
h. Attorney’s fees, suit $ and costs
i. Compensatory or coercive fines
j. Any other coercive sanction permitted by law
5.
Purge: MUST HAVE PURGE PROVISION
a. If court orders jail, coercive fine or any other
coercive sanction – must set conditions for purge of
21
contempt based upon present ability to comply.
i. CASE: Purge provision requiring, inter alia, that
ex-husband "not expose the children to his
hostility toward the Former Wife" was too broad
and indefinite. Lanza v. Lanza, 804 So.2d 408
(Fla. 4th DCA 2001).
b. Must make separate affirmative finding of present
ability to comply with purge and the factual basis for
that finding .
c. Court may grant former husband reasonable time to
purge.
d. If court defers jail for more than 48 hours in order
for contemnor to comply, court may rely on affidavit of
non-compliance from movant and certificate from
Depository, when issuing writ of bodily attachment.
e. Court may jail upon proof of non-compliance, but
must re-determine present ability to purge within 48
hours of arrest.
6.
Continuing authority to review present ability to
comply with purge, to review duration of incarceration, and to
modify any prior orders upon motion of any party or court.
7.
Where there is a failure to pay support but no showing
that it was willful, court may grant such relief as may be
appropriate under the circumstances.
F.
CONVERTING CIVIL CONTEMPT TO CRIMINAL
CONTEMPT
While you may not mix civil and criminal contempt in
the same proceeding, it is possible to convert civil contempt to
criminal contempt after a hearing is commenced. However,
22
“[s]uch a conversion would mandate the continuation of the
hearing to provide for issuance of an order to show cause that
complies with the rule with fair opportunity to the respondent
to prepare and be heard. However, such practice flirts with
procedural due process flaws. Accordingly, better practice
suggests that such situations be anticipated in advance
whenever possible so that full due process safeguards required
by Fla. R. Crim. P. 3.840 will be afforded.” Pugliese, 347
So.2d 422, 426-427 (Fla. 1977).
A person may be held in civil contempt and criminal
contempt. in separate proceedings, for the same conduct.
Featherstone v. Montana, 684 So.2d 233 (Fla. 3rd DCA 1996).
Governing Statutes
The laws of a state are usually contained in their
statutes. The Florida Statutes (F.S.), Chapter 61 governs
support orders. In particular F.S. 61.14 Enforcement and
modification of support, maintenance, or alimony
agreements or orders. You can read the modification and
contempt portion of the statute in the appendix. In part, it reads
as follows regarding contempt hearings:
(5)(a) When a court of competent jurisdiction enters
an order for the payment of alimony or child support
or both, the court shall make a finding of the
obligor's imputed or actual present ability to comply
with the order. If the obligor subsequently fails to pay
alimony or support and a contempt hearing is held, the
original order of the court creates a presumption
that the obligor has the present ability to pay the
alimony or support and to purge himself or herself
from the contempt. At the contempt hearing, the
obligor shall have the burden of proof to show that
he or she lacks the ability to purge himself or herself
from the contempt. This presumption is adopted as a
presumption under s. 90.302(2) to implement the
public policy of this state that children shall be
maintained from the resources of their parents and as
provided for in s. 409.2551, and that spouses be
maintained as provided for in s. 61.08. The court shall
state in its order the reasons for granting or denying
the contempt.
(b) In a proceeding in circuit court to enforce a
support order under this chapter, chapter 88, chapter
409, or chapter 742, or any other provision of law, if
the court finds that payments due under the support
order are delinquent or overdue and that the obligor is
unemployed, underemployed, or has no income but
is able to work or participate in job training, the court
may order the obligor to:
1. Seek employment.
2. File periodic reports with the court, or with the
department if the department is providing Title IV-D
services, detailing the obligor's efforts to seek and
obtain employment during the reporting period.
3. Notify the court or the department, as appropriate,
upon obtaining employment, income, or property.
4. Participate in job training, job placement, work
experience, or other work programs that may be
available pursuant to chapter 445, chapter 446, or any
other source.
An obligor who willfully fails to comply with a court
order to seek work or participate in other work-related
activities may be held in contempt of court. This
paragraph is in furtherance of the public policy of the
23
24
state of ensuring that children are maintained from the
resources of their parents to the extent possible.
**********
In addition to the statutes, the primary case that governs
most of the hearings is the caselaw cite of Bowen v. Bowen,
471 So.2d 1274 (Fla. 1985). (Full case cite on website) The
holding in that case was:
“In summary, we hold:
(a) In both civil and criminal contempt
proceedings, a prior judgment establishing the
amount of support or alimony to be paid creates
a presumption that the defaulting party has the
ability to pay that amount.
(b) In civil contempt proceedings, the
defaulting party has the burden to come
forward with evidence to dispel the
presumption that he had the ability to pay and
has willfully disobeyed the court order. In the
event contempt is found, the trial judge must
separately find that the contemnor has the
present ability to pay the purge amount before
incarceration can be imposed to obtain
compliance with the court order.
(c) In criminal contempt proceedings, the
movant has the burden of establishing, beyond a
reasonable doubt, that the defaulting party
willfully violated the court order. In meeting
this burden, the movant has the benefit of the
presumption that the defaulting party had the
ability to comply with the court order.”
25
For general purposes, item (b) will be the one upon
which you should concentrate and use for your defense at the
hearing.
matters related to family law cases. (See Appendix)
As you can see, the basic rules of the road are contained
in the Florida Statues, Fla. R. Civ. P and the Fla. Fam. R. P.
Take the time to read them and become familiar with them.
You don’t have to memorize them but when they are
referenced in legal documents, you will want to be
knowledgeable about them.
These rules apply to both parties to this conflict and
equally they have to abide by them. Don’t look at them as if
only one side can use them. They can work in your favor too.
Know what they are. When the other side uses them in a
document, verify that they are applied correctly. Occasionally,
they might contain errors or not be applicable in your situation.
Like the test you had to take for your driver’s license, if
you don’t know the rules of the road, you will fail this test in
court. And there, if you fail, you could end up in jail.
Now that you have seen the definitions of contempt,
you will need to know what the court looks for in finding out
whether or not you have a present ability to pay the arrearages
or pay a purge. Fulfilling Purge Requirements in the next
chapter will provide that answer.
26
Fulfilling Purge Requirements
W
hat can they take from you to satisfy a purge?
What can they garnish? Is anything safe? How
can you protect yourself?
As you saw in the case of Bowen v. Bowen, the
operative wording to hold you in contempt was the statement:
(b) In civil contempt proceedings, the
defaulting party has the burden to come
forward with evidence to dispel the
presumption that he had the ability to pay and
has willfully disobeyed the court order. In the
event contempt is found, the trial judge must
separately find that the contemnor has the
present ability to pay the purge amount before
incarceration can be imposed to obtain
compliance with the court order.
When you are found in contempt for not making a court
ordered payment, they will be able to do so on the basis of
using some of the following methods to find where you can get
the money to pay the alimony arrearages or purge amount:
27
Q Present Ability To Pay
This is pretty obvious. Your bank statements, savings
accounts, credit card lines of credit, stocks, retirement
accounts, pension funds or any other asset, which could be
turned into cash immediately or within a few days, will be
examined. It doesn’t take a rocket scientist to conclude that if
you have assets, the court will determine you have a “present
ability to pay” and you will have to do so.
Q Imputed Income
The courts will look to your potential earning capacity
based on your current educational, professional, past
employment, trade skills, etc. to determine your ability to pay.
They will use two basic approaches depending upon your
circumstances e.g. unemployed or underemployed. See
Freilich v. Freilich in the appendix.
Q Unemployed
If you are unemployed, the statutes give the court
authority to do certain things when it states:
“if the court finds that payments due under the
support order are delinquent or overdue and that
the obligor is unemployed, underemployed, or
has no income but is able to work or participate
in job training, the court may order the obligor
to:
1. Seek employment.
28
2. File periodic reports with the court, or with
the department if the department is providing
Title IV-D services, detailing the obligor's
efforts to seek and obtain employment during
the reporting period.
3. Notify the court or the department, as
appropriate, upon obtaining employment,
income, or property.
4. Participate in job training, job placement,
work experience, or other work programs that
may be available pursuant to [F.S.] chapter 445,
chapter 446, or any other source.“
Q Under-employed
There is no relief here. Say that at one time while you
were married and you made a good salary. Now, after the
divorce and due to circumstances beyond your control, you are
no longer able to find a job as well paying as the one you had
prior to the divorce and are making do as best you can at this
time. When you go to the court seeking to prove that you are
unable to pay, what can you expect?
The courts in many cases have denied relief on the basis
that you are under-employed and not earning up to your
potential. It doesn’t matter that there are no good jobs available
or that no one will hire you to a better job, the judge doesn’t
care what your problems are. He will tell you that you haven’t
demonstrated a valid proof of an inability to pay a purge. They
will “impute” income to you and force you to comply with the
original court order.
Q Joint Bank Accounts With Your Name On Them.
29
If the court finds you have any accounts with your
name on them, the funds in these accounts will be included in
determining your ability to pay back alimony. This can be quite
disconcerting to a second wife who works and deposits her
paycheck in the joint account. Her income will be deemed as
adding to your total income for the purposes of paying a purge.
These accounts could even be ones where you have a
savings account for any of your children. Or, even where you
are on a parent’s account as a joint tenant, with the right of
survivorship in the event they passed away and you didn’t want
it to go to probate. The courts would imply that you have
control over it and thereby are able to draw from it to satisfy
any obligations you have. Whether or not this is the case does
not matter to them.
After reading this, and find the scenario applies to you,
it would be prudent to take immediate action to remedy this
situation so that innocent people in your family will not be
adversely affected by court actions against you.
If you are fortunate enough to have remarried since
your divorce there might be a way out of this dilemma. A
member of a forum group suggested a radical (and somewhat
humorous) solution to this problem whereby; you divorce your
second spouse and let the court determine that they are entitled
to alimony. Therefore what your present spouse would earn can
be kept separately and secure from attachment by the first
spouse.
Theoretically, since the alimony payment to the first
spouse was based on a percentage of your income, the court
will have to adjust (hopefully downward) the alimony going to
the first spouse in order to allow additional alimony payments
to go to the present spouse you just “divorced.” By doing this,
you can have the best of both worlds and save money in the
long run.
It is felt that the courts have to leave you enough
income to live on and can only take a certain percentage of
your income. If they don’t, then you have an appealable case.
If you tried this drastic maneuver, one of the things
30
with which you would have to find an explanation for, should
you be questioned, would be to explain why, after the sham
“divorce,” you are still living with the person with whom you
recently terminated a relationship. One answer might be that
you have tentatively reconciled things to some extent and are in
a “trial” living relationship.
With the second spouse to whom you are currently
married, the financial status of your second spouse is generally
not relevant in an alimony modification proceeding as shown
by existing caselaw. This ruling will possibly apply in the
consideration as to whether or not you have a present ability to
pay.
There is an exception where if it can be shown that you
have deliberately limited your income for the purpose of
avoiding or reducing your alimony payments and you are
living largely from the income of your second spouse. Vega v.
Swait, 4D07-932 (Fla.App. 4 Dist. 8-1-2007)
Q Court Ordered Garnishment
This type of garnishment includes wages, bank
accounts and other assets. A court order directing a party
holding funds (such as a bank) or about to pay wages (such as
an employer) to an alleged debtor to set that money aside until
the court determines (decides) how much the debtor owes to
the creditor. Garnishing funds is also a warning to the party
holding the funds (garnishee) not to pay them, and to inform
the court as to how much money is being held. If the garnishee
(such as a bank or employer) should mistakenly give the
money to the account owner or employee, the garnishee will be
liable to pay the creditor what he/she/it has coming.
Garnishing wages is a typical means used to collect late
child support, alimony payments or money judgments. Often
the order will be to pay installment payments to the sheriff
until the debt is collected. Then the sheriff pays the whole
amount or payments to the person to whom the money is owed.
31
Governing Statutes:
Florida Statutes 61.12 Attachment or garnishment
of amounts due for alimony or child support.-(1) So much as the court orders of the money or
other things due to any person or public officer,
state or county, whether the head of a family
residing in this state or not, when the money or
other thing is due for the personal labor or
service of the person or otherwise, is subject to
attachment or garnishment to enforce and satisfy
the orders and judgments of the court of this
state for alimony, suit money, or child support,
or other orders in proceedings for dissolution,
alimony, or child support; when the money or
other thing sought to be attached or garnisheed
is the salary of a public officer, state or county,
the writ of attachment or garnishment shall be
served on the public officer whose duty it is to
pay the salary, who shall obey the writ as
provided by law in other cases. It is the duty of
the officer to notify the public officer whose
duty it is to audit or issue a warrant for the
salary sought to be attached immediately upon
service of the writ. A warrant for as much of the
salary as is ordered held under the writ shall not
issue except pursuant to court order unless the
writ is dissolved. No more of the salary shall be
retained by virtue of the writ than is provided
for in the order.
(2) The provisions of chapter 77 or any other
provision of law to the contrary
notwithstanding, the court may issue a
continuing writ of garnishment to an employer
to enforce the order of the court for periodic
32
payment of alimony or child support or both.
The writ may provide that the salary of any
person having a duty of support pursuant to such
order be garnisheed on a periodic and
continuing basis for so long as the court may
determine or until otherwise ordered by the
court or a court of competent jurisdiction in a
further proceeding. Any disciplinary action
against the employee by an employer to whom a
writ is issued pursuant to this section solely
because such writ is in effect constitutes a
contempt of court, and the court may enter such
order as it deems just and proper.
Be sure to read all of Florida Statutes Chapter 222
Homestead And Exemptions for further information.
Q Homestead exemption:
222.01 Designation of homestead by owner before levy.-(1) Whenever any natural person residing in
this state desires to avail himself or herself of
the benefit of the provisions of the constitution
and laws exempting property as a homestead
from forced sale under any process of law, he or
she may make a statement, in writing,
containing a description of the real property,
mobile home, or modular home claimed to be
exempt and declaring that the real property,
mobile home, or modular home is the
homestead of the party in whose behalf such
claim is being made. Such statement shall be
signed by the person making it and shall be
recorded in the circuit court.
(2) When a certified copy of a judgment has
been filed in the public records of a county
pursuant to chapter 55, a person who is entitled
to the benefit of the provisions of the State
Constitution exempting real property as
homestead and who has a contract to sell or a
commitment from a lender for a mortgage on
the homestead may file a notice of homestead in
the public records of the county in which the
homestead property is located in substantially
the following form:
222.02 Designation of homestead after levy.
--Whenever a levy is made upon the lands,
tenements, mobile home, or modular home of
such person whose homestead has not been set
apart and selected, such person, or the person's
agent or attorney, may in writing notify the
officer making such levy, by notice under oath
made before any officer of this state duly
authorized to administer oaths, at any time
before the day appointed for the sale thereof, of
what such person regards as his or her
homestead, with a description thereof; and the
remainder only shall be subject to sale under
such levy.
Killian v. Lawson, 387 So.2d 960 (Fla. 1980) states:
“A wage earner need not reside in the same
house with his wife and/or children to remain
the head of a family. Instead, it is the obligation
to support, and dependency on that obligation,
which should control. See McGookey v. Winter,
381 Ill. 516, 46 N.E.2d 84 (1943); Lena v.
Clinkenbeard, 172 Okla. 6, 44 P.2d 2 (1935). In
33
34
the instant case, respondent's alimony payments
constitute his former wife's sole means of
support. Even though divorced, respondent
must, by court order, continue to support his exwife. This duty arose out of a family
relationship and makes him the financial head of
a household. We agree with the district court
and hold that respondent is entitled to the
exemption provided by section 222.11.”
However, if the judge determines that you are have
acted contemptuously and willfully not making your alimony
payments, you can be forced to sell it as shown in Partridge v.
Partridge, 912 So.2d 649 (Fla.App. 4 Dist. 2005) which states:
“In Gepfrich v. Gepfrich, 582 So.2d 743 (Fla.
4th DCA 1991) (forced sale of homestead
property permitted where the former husband
attempted to use the homestead exemption as an
instrument to defraud his former wife and to
escape his debt to her), we held that homestead
property can be the subject of an equitable lien
where fraud or reprehensible conduct is
demonstrated. We explained our rationale thus:
"As the supreme court stated in Anderson v.
Anderson, 44 So.2d 652 (Fla. 1950), `[t]he
Courts have taken the view that inasmuch as the
purpose of the exemption statute is to protect
not only the husband but also his family from
destitution and becoming a public charge, the
exemption statute will not, unless the contrary
intention is clearly shown, be construed to
enable the husband to claim its benefits against
the very persons to whom he owes the
obligation of support and maintenance, and that
to construe the statute otherwise would, at least
in part, defeat its avowed object'."
Gepfrich, 582 So.2d at 744. If our holding was
not evident in the husband's previous appeal, we
now make clear that the trial court had the legal
authority to foreclose the lien.
Although the trial court did not make a specific
finding of fraud, it did find that he had acted
contemptuously. Contemptuous conduct may
certainly be the functional equivalent of fraud,
and it represents the kind of reprehensible
conduct justifying foreclosure. See Gepfrich,
582 So.2d at 745 (Farmer, J., specially
concurring) ("appellant's defenses to the
contempt charge . . . establish . . . the functional
equivalent of fraud or reprehensible conduct
sufficient for an equitable lien."). The fact that
the marital property was designated as
homestead before the divorce does not bar
imposition of a lien on marital property
distributed to one of the partners any more than
the previous homestead character bars the
distribution itself or partition and sale. The
record supports a finding that his conduct
justified the forced sale of his property.”
Florida Statute 222.11 Exemption of wages from
garnishment.-(1) As used in this section, the term:
(a) "Earnings" includes compensation
paid or payable, in money of a sum certain, for
personal services or labor whether denominated
as wages, salary, commission, or bonus.
35
36
(b) "Disposable earnings" means that
part of the earnings of any head of family
remaining after the deduction from those
earnings of any amounts required by law to be
withheld.
(c) "Head of family" includes any
natural person who is providing more than onehalf of the support for a child or other
dependent.
(2)
(a) All of the disposable earnings of a
head of family whose disposable earnings are
less than or equal to $500 a week are exempt
from attachment or garnishment.
(b) Disposable earnings of a head of a
family, which are greater than $500 a week,
may not be attached or garnished unless such
person has agreed otherwise in writing. In no
event shall the amount attached or garnished
exceed the amount allowed under the Consumer
Credit Protection Act, 15 U.S.C. s. 1673 (see
www.dol.gov/compliance/guide/garnish.htm)
(c) Disposable earnings of a person
other than a head of family may not be attached
or garnished in excess of the amount allowed
under the Consumer Credit Protection Act, 15
U.S.C. s. 1673.
(3) Earnings that are exempt under subsection
(2) and are credited or deposited in any financial
institution are exempt from attachment or
garnishment for 6 months after the earnings are
received by the financial institution if the funds
can be traced and properly identified as
earnings. Commingling of earnings with other
funds does not by itself defeat the ability of a
head of family to trace earnings.
Florida Statute 222.18 Exempting disability income
benefits from legal processes.Disability income benefits under any policy or
contract of life, health, accident, or other
insurance of whatever form, shall not in any
case be liable to attachment, garnishment, or
legal process in the state, in favor of any
creditor or creditors of the recipient of such
disability income benefits, unless such policy or
contract of insurance was effected for the
benefit of such creditor or creditors.
Q Garnishment of Social Security
In the case of Hisquierdo v. Hisquierdo, 439 U.S.
572 (1979) it states:
“Like Social Security, and unlike most private
pension plans, railroad retirement benefits are
not contractual. Congress may alter, and even
eliminate, them at any time.[fn6] This
vulnerability to congressional edict contrasts
strongly with the protection Congress has
afforded recipients from creditors, tax gatherers,
and all those who would "anticipate" the receipt
of benefits:
"Notwithstanding any other law of the
United States, or of any State, territory, or the
District of Columbia, no annuity or
37
38
supplemental annuity shall be assignable or be
subject to any tax or to garnishment, attachment,
or other legal process under any circumstances
whatsoever, nor shall the payment thereof be
anticipated . . . ." 45 U.S.C. § 231m.[fn7]
In 1975, Congress made an exception to §
231m and similar provisions in all other federal
benefit plans. Concerned about recipients who
were evading support obligations and thereby
throwing children and divorced spouses on the
public dole, Congress amended the Social
Security Act by adding a new provision, § 459,
to the effect that, notwithstanding any contrary
law, federal benefits may be reached to satisfy a
legal obligation for child support or alimony. 88
Stat. 2357, 42 U.S.C. § 659.[fn8] In 1977,
shortly before the issuance of the Supreme
Court of California's opinion in this case,
Congress added to the Social Security Act a
definitional statute, § 462(c), which relates to §
459 and limits "alimony" to its traditional
common-law meaning of spousal support. That
statute states specifically that "alimony"
"does not include any payment or transfer of
property or its value by an individual to his
spouse or former spouse in compliance with any
community property settlement, equitable
distribution of property, or other division of
property between spouses or former spouses."
Pub.L. 95-30, Tit. V, § 501(d), 91 Stat.
160.[fn9]”
Q Garnishing Pension And Other Retirement Benefits For
Employees Of The Federal Government
39
Federal law authorizes the pay of active, reserve, and
retired members of the military and the pay of civilian
employees of the Federal government to be garnished (or
attached) for the payment of child and/or spousal alimony. The
law is found at 42 U.S.C. 659, and the implementing
regulations are found at 5 C.F.R. Part 581. (You can find these
laws using Google.)
In order to implement a garnishment or wage
attachment against any member of the military or any civilian
employee of the Department of Defense (DOD), an income
withholding order, or similar process, must be served upon
Defense Finance and Accounting Service (DFAS) (see
www.dfas.mil/militarypay/garnishment.html.)
DFAS Cleveland processes all court ordered
garnishment for child support, alimony and commercial debts
for all military members and all civilian employees paid by
DFAS, plus court ordered divisions of military retired pay
under the Uniformed Services Former Spouses' Protection Act.
Q Other Tactics
This writer has read where the judge has upheld the
contempt charge against the non-paying spouse who had
indicated a change of circumstance that made them unable to
pay the current alimony. In various cases the judge determined
that some of the following conditions existed whereby back
alimony could be paid.
1.
When a non-paying spouse had good credit, the
judge ruled that it constituted “borrowing power” from which
he could obtain loans with which to pay arrears. In Missouri,
the Dept. of Human Resources, reportedly, ordered the bank of
a person, who owed back child support, to take out a loan in his
name to pay his arrearages.
40
2.
When a spouse had credit cards with unused
credit on them.
3.
Dirty Dog Law. This is an application of law
used by the judges against “deadbeat dads” who are
notoriously delinquent in their alimony payments. In essence,
they apply it as a way to get around the “ability to pay”
guidelines by being able to throw repeat offenders who don’t
have the ability to pay in jail. You can read an article on it on
the panama-publishing.com support website.
As you can see, the judge has a number of ways to
make you to comply with the court order. Undoubtedly, there
are even others that are not covered here, but the abovementioned ones should be some relevant ones. Be forewarned
to be prepared.
In the event you have assets that can be used to pay a
purge and you don’t see any way you can get around the court
utilizing it for a purge, you might want to consider contacting
the lawyer for the other side to see if an agreement can be
worked out in order to avoid an embarrassing hearing where
you can’t win.
But, if you think you have a good chance of convincing
the judge that you should not be held in contempt and want to
continue on in your defense, you will now need to start
learning how to do it. Preparation For Research in the next
chapter will guide your way.
41
Preparation For Research
ow can you prepare yourself in order to understand
what is needed to defend yourself in court? Where can
you do this? What will be needed for you to research?
Whether you live in Florida or in another state you need
to check the laws regarding contempt, alimony, support
enforcement, etc. You can do this by researching your state’s
statutes, and case law that are used as precedents for court
rulings in the manner described below.
But first, one of the things that will definitely help you
is to learn as much about the legal jargon and procedures as
possible so that you can know what you are doing when you
prepare your documents and appear in court. Unless you can
take an accelerated course in how to become a paralegal, the
next best thing is to get some simple books in layman’s
language that will help you in this area.
The ones that I found to be most helpful are the
following:
H
1. Legal Research by Elias & Levinkind
42
2. Represent Yourself In Court by Bergman &
Berman-Barrett
You can find these books at:
www.panama-publishing.com or your local library might have
a copy of them you can borrow.
After reading these books, you will have a clearer
understanding of what you are doing and you will be ready to
do some researching on the laws. All the laws pertaining to
how the courts will be guided in making their rulings can be
found in a state’s statutes and caselaw.
More than likely, your state will have a website where
you can find the statutes. The simplest way to find them is to
use Google or some other search engine and search on “statutes
+ (your state name)” do not include the “ quotes.
Once you have found the statutes site, you will need to
locate the section that deals with the enforcement of support
orders. Statute sites usually have a search box to search the
statutes. Again, search on “alimony” and other similar terms
and most likely you will find the appropriate statue with the
laws that govern it. To find any of the statutes that govern
contempt, do a search on that term also.
In Florida, alimony comes under Chapter 61, contempt
in particular is under rule 61.14 Enforcement And
Modification Of Support, Maintenance, Or Alimony
Agreements Or Orders. Read it thoroughly and try to
understand it, as it will be your primary guide.
Normally, the first document you will receive in the
contempt process is a motion for contempt or motion to show
cause why you should not be held in contempt and that will
outline your transgressions giving rise to the motion. The
motion will reference rules of procedure that might not be
familiar to you but are ones, which you should definitely read.
Quite often, I have found that the opposition has interpreted
them incorrectly and it gave me a basis on which to file a
counter motion to defend myself. There will be more on
defenses in a later chapter.
43
For Florida, the basic rules of procedure references are
as follows:
1. Florida Rules of Civil Procedure (Fla. R. Civ. P.)
2. Florida Family Law Rules of Procedure (Fla. Fam. L.
R. P.)
3. Local court rules (if there are any), which can be found
at: http://www.flcourts.org/index.shtml where you
would select the “circuit courts” to find the one for your
county.
The Rules of Procedure publications can be found on
our website or possibly in your state’s Bar Association website.
Also, try to Google “rules of procedure” +(your state name).
Be sure that the rules are for the current year.
Caution: Since the laws are constantly changing, you
will want to verify that any statutes, rules of procedure or any
other laws you are using are the most current ones. Even the
ones quoted in this book might have been revised from the time
of publishing this book until you read it.
After you have done the above, you will want to move
on to researching case law. Three of the ways to do this, that I
have used, are; 1) your local public library; 2) the law library
located at your local courthouse, and; 3) lexisONE.
In the public library, go to the local library reference
area. They are usually tied into a legal reference vendor such as
Loislaw. The reference librarian should be able to inform you
how to access this service through the public computers in the
library.
In Loislaw or whichever one you use, you will be
looking for recent cases that affect the subject matter of your
hearing. When starting the search in Loislaw, select “caselaw”
option then on the next page the state for where you want to
find the cases. Searching the cases is pretty much straight
forward.
Caselaw that is used are called “cites” or citations.
Unless you know the particular case cites you are looking for,
44
it will be advisable to search on “keywords” such as contempt,
alimony, 61.14, etc. as explained in the recommended research
book. From the search results, be sure to use the most current
cite that fits your needs.
The cases you will find in your search contain decisions
relating to and interpreting the laws. They are considered
precedential and carry the weight of law established in your
state. The judge in your hearing is only interested in the laws of
your state and not that of others. Cites from other states will
only be considered as persuasive and nothing else more. Avoid
using them unless absolutely necessary.
In using the law library at your local courthouse, you
will probably find a service like Westlaw. Westlaw and
Loislaw are different vendors. With Westlaw, your best bet
will be to go to their site and peruse their free user guides on
how to use their service. The main one your want to read is the
one on “KeyCite” which allows you to “Shepardize” caselaw.
You can do so at www.westlaw.com. Go to the following links:
Training Options>Westlaw User Guides>KeyCite.
KeyCite will help you to find out if a quoted case law
cite (citation) or statute is current. In legal documents, cites
will be used. You need to see if these are still the governing
ones. In Loislaw, this feature is called GlobalCite and is at the
bottom of the window in a clickable button when you pull up a
case cite. Go to their “Help” section to find out more.
Author’s Note: When at one of the libraries and you
want to make copies of the documents you find on
Loislaw or Westlaw, an easy way to do it is to use an
online email account such as Yahoo Mail, Gmail or
MSN Hotmail if you aren’t able to access your regular
mail server used by your present Internet Service
Provider.
45
First, you open up your online email account and
prepare an email to yourself. Bring up the document
you want to copy in Loislaw or Westlaw and then
highlight and “copy” the text you want. Then “paste” it
into the email that you will send to yourself. When you
get home, you can then copy and paste the documents
from the received email into your word-processing
program.
There is another resource, which will search out
caselaw for the last 5 years at lexisONE. (www.lexisone.com/)
On their home page, click on the “Find Cases for Free” in the
center column of text. You will need to register first, but there
is no charge. You can register as a “private user” when asked
for “your organization.”
If you live in another state and need to check the laws
regarding, contempt, etc., you can most likely do it by
researching your state’s statutes and case law by following the
procedures in the manner described above.
Unbundled Legal Services
The Florida Bar Assn. and possibly ones in other states
have what is called “Limited Representation,” (see full article
on www.panama-publishing.com) which involves hiring a
lawyer to help you with only part of your case, instead of with
your whole case. This is also called “unbundled legal services.”
If you feel that you can handle most of your case by yourself
but would like a lawyer to help you or to represent you in a part
of it, you can hire a lawyer for that part.
By doing this you can do most of the legwork by
yourself and let the lawyer guide you where necessary and to
possibly check over your work.
Another avenue you might consider is to hire a
paralegal to help you. A lot of the secretaries working for
lawyers are paralegals and if they can’t help you, might be able
46
to refer you to one. You can also look in the yellow pages or
check with a local school offering paralegal courses. You
might be able to hire one of the advanced students or graduates
there.
Lastly, you will need a good word processing program.
Widely used is MS Word. Most courts accept documents
created with this and then e-filed by attaching a Word
document to an email. The other accepted one is Wordperfect.
Armed with the above knowledge, you are now ready to
move on to your defenses starting off with understanding some
of the documents involved starting with the motion for
contempt covered in the next chapter.
47
Typical Documents Involved In
Contempt Hearings
W
hich ones do you file first and what is the
sequence of filing? How many documents you
will need to prepare will depend upon how much
your ex-spouse and her lawyer will want to make you comply
with the court order to make alimony payments. Rest assured,
they won’t give up easily.
The documents shown below are ones that were
involved in an actual case. Don’t let the list below overwhelm
you. Hopefully, your case will not be as complicated and you
won’t have to use all of them but it is better to be ready for
most every eventuality.
One thing you will find out is that the ways of
preparing the documents are not written in stone. Yet, there are
certain basics, which you need to follow. Some samples are
provided in the Appendix. Each state usually provides free
standard forms on a website from which you can download
them or you might be able to purchase them at your local
courthouse.
For a couple of good websites to visit to see examples
of the documents mentioned below and how they were used in
an actual case that lasted over several years, go to
48
www.abolish-alimony.org and look under the “Legal” items on
the menu. It is one of the most complete and informative sites
that I have found that documents one person’s fight on a selfrepresented, pro se basis from the circuit court up to the Florida
Supreme Court. The other one can be found at
www.alimonyreform.org under “legal filings.”
As you read the instructions for the documents below,
you will see that they refer to either the Fla. R. Civ. P. (Florida
Rules of Civil Procedure) or the Fla. Fam. L. R. P. (Florida
Family Law Rules of Procedure.) You will need to refer to
these rules in order to see what is covered under the rule that is
referenced in any of the documents.
Also, the other side will probably be sending you
documents quoting particular rules and statutes. Any time you
see them in a document, take the time out to read that rule or
statute. It will tell you what your responsibilities are as well as
those of the other side.
These rules of procedure are the rules of the road under
which the court operates and those you will need to follow. The
best place to obtain them for Florida is at the Florida Bar
Association website at: www.floridabar.org. Click on the
following links:
Publications>Directory & Links>Florida Rules of Procedure.
Download and keep a copy on your computer.
Since these rules are pretty well delineated, the judges
will be expecting you to follow them. Even though they will
give you some leeway, following the procedures will show the
judge that you are trying to be conscientious in your efforts.
As luck would have it, Florida has a website where
these and other standard forms are located and they are
available for you to use at no cost. These can be found and
downloaded from the following site:
www.flcourts.org/gen_public/family/forms_rules/index.shtml
The downloadable files are presented in “zip,” “exe,”
and “pdf” file formats. Instructions on how to use each of these
49
types of files are given on the website. Each form you
download has the instructions for filling them out.
Ideally, you will download the “zipped” file and extract
the files into one of your word-processing directories. Then
take the document and open it in MS Word or similar program.
From there you can make entries and fill out the documents as
required.
After completing any of these forms, you should file the
original (preferably, you should sign the original in blue ink)
with the clerk of the circuit court in the county where your case
is filed and keep a date-stamped copy for your records (unless
your local clerk requires otherwise).
Author’s Note: On the first page of the documents you
will file with the court, all the information above the
title of the document is referred to as the “style of the
case.” e.g. the name of the court, case number, and
names of the parties.
Documents which are mentioned below and which
cannot be found as a standard form on the state website will
need to be drafted by you by adapting one of the documents
found in the appendix or from some of the ones found on the
www.abolish-alimony.org website. The forms below that can
be found on the state website are indicated with a form number
after the title.
For other states you will need to check for your state’s
website where they might be found. You can do this by
contacting your local clerk of court. Also, a lot of courts
provide a “self-help” department that can offer you some help
to some degree. It will be worth your while to contact the clerk
for further info.
When you are filling in the document, keep in mind that
the judge is not interested in your philosophy or opinions on
the legitimacy of paying alimony or whatever might be
irritating you about your ex. All he wants are the “facts” of the
50
case. Once the judge has these facts, they will apply the “law”
to the facts of the case.
At all times be courteous to the judge and opposing
lawyer. If needed, there are ways to put the other side down,
but it has to be done diplomatically. For instance, you can’t call
them a “liar”, but you can say that they are “misrepresenting
the facts.”
The best way to find out typical acceptable wording is
to check out similar documents that have been already filed
with the clerk. Take a trip to the courthouse to see actual
documents that have been filed there. Take time to read them,
it will be a good education for you and let you see the different
styles of the various lawyers.
All the records filed with the court are public records
and anyone can view them or purchase them by simply going
to the clerk’s office in the courthouse. The clerk will tell you
their procedures. They usually have computers where the filed
documents can be viewed. If you want a copy, there is a small
per-page charge.
Discovery Documents For Contempt Hearings
Be sure to read and Fla. R. Civ. P. RULE 1.280 (b)(1).
Mandatory Disclosure (see the Appendix), which covers the
subject in general and tells you what you are allowed to do,
what is required by both sides, and the penalties for not
complying.
The next thing you will want to do is to gather up all
the information you can that you will need in your defense of
the contempt proceedings. You do this in a process called
“discovery.” Simply put, you request it from the other side
based on the rules of discovery found in the Fla. R. Civ. P. and,
according to the court rules of procedure, they have to provide
it or face contempt of court.
Discovery is the process by which each party can
request information from the other party in preparation for their
51
case. It is almost a sure thing that you will be sent some of
these documents for which you will have to comply with a
response. Simply, answer their questions or produce the
requested items to the best of your ability.
In Florida, the most of the basic discovery documents
are standard forms that are supplied by the state and can be
found on their website mentioned above.
Author’s Note: Frequently, when the other side knows
you are acting pro se, they will start throwing
documents at you requesting one thing or another.
Remember, you can do the same thing in return. Even if
they don’t request anything, it is important for you to
request financial and similar information.
Another benefit of doing this is to force the
other side to do some work and be inconvenienced just
like yourself. Do not give them a free ride in allowing
them to make you provide the all the discovery without
them doing the same. These are legitimate requests
permitted to you by the rules of procedure and there
should be no lawyer fees incurred by you from the other
side having to respond.
Q Request to Produce (See sample in Appendix)
Other than what has been mentioned above, the range
of what you can ask for is quite extensive. Fla. R. Civ. P. Rule
1.280. General Provisions Governing Discovery indicates the
following:
Fla. R. Civ. P. Rule 1.280 (1) In General.
Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the
subject matter of the pending action, whether it
relates to the claim or defense of the party
52
seeking discovery or the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
knowledge of any discoverable matter. It is not
ground for objection that the information sought
will be inadmissible at the trial if the
information sought appears reasonably
calculated to lead to the discovery of admissible
evidence.
Based on this rule, you have the right to seek out any
information that will help you in your case. All you need do is
to request it.
Q Notice of Production from Non-Party
(Form 12.931(a))
These forms should be used if you need copies of
documents (for a purpose relating to your case) from a
nonparty in your case. A nonparty is anyone other than the
Plaintiff or the Defendant such as an accountant who has
prepared tax documents for your ex-spouse, banks, financial
institutions, investment firms, and the like.
Notice of Production from Nonparty, Florida Supreme
Court Approved Family Law Form 12.931(a), is used to notify
the other party in your case that in 10 days you are going to
subpoena documents from a nonparty. Subpoena for
Production of Documents from Nonparty, Florida Supreme
Court Approved Family Law Form 12.931(b), is the actual
subpoena directing the nonparty to produce specific
documents. You must file the originals of these forms with the
clerk of the circuit court. A copy of these forms must be mailed
or hand delivered to any other party in your case.
Ten days after you serve the Notice of Production from
53
Nonparty, Florida Supreme Court Approved Family Law Form
12.931(a), on the other party in your case (15 days if service is
by mail) and they haven’t responded, you should ask the clerk
of the court to sign the subpoena and send it. You should
contact the deputy sheriff or private process server and have
the subpoena personally served on the person named in the
subpoena. You can also send them by mail, but a process
server makes it seem more official.
The Subpoena for Production of Documents from
Nonparty (is included in Form 12.921(a) above) Form
12.921(b))
Motions
Q Motion to Compel (See sample in appendix)
This is a powerful tool in your arsenal of offensive
tactics. When the other side does not comply with your request
for any discovery, a motion to compel should be filed
immediately after the time for a response is past. It is very
useful to keep a calendar of reminders to let you know when
they are due. The motion is easy to create and the opposition
knows they have to comply or face contempt of court
sanctions. Do not ignore these as they will keep the other side
working and on the defensive.
You need to become familiar with the way time for
response is computed as it will have an important bearing on
when you will file motions or responses. The Fla. R. Civ. P.
rules state:
RULE 1.090. TIME:
(a) Computation. In computing any period of time
prescribed or allowed by these rules, by order of
court, or by any applicable statute, the day of the
act, event, or default from which the designated
period of time begins to run shall not be included.
54
The last day of the period so computed shall be
included unless it is a Saturday, Sunday, or legal
holiday, in which event the period shall run until the
end of the next day which is neither a Saturday,
Sunday, or legal holiday. When the period of time
prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays
shall be excluded in the computation.
(e) Additional Time after Service by Mail. When
a party has the right or is required to do some act or
take some proceeding within a prescribed period
after the service of a notice or other paper upon that
party and the notice or paper is served upon that
party by mail, 5 days shall be added to the
prescribed period.
Q Motion for Contempt (Form 12.960)
If the other side does not comply with your motion to
compel, this is the next step to causing them some grief for
their negligence and uses the power of the court to do so. It will
also have the advantage of showing the court that the other side
is not acting in good faith by following the rules and
complying with your requests.
You may also use this form to ask the court to enforce a
prior court order or final judgment. To initiate a civil
contempt/enforcement proceeding against a party who is not
complying with a prior court order, you must file a motion for
contempt with the court explaining what the party has failed to
do.
Q Motions to Deny or Object (See sample in the appendix)
Any time the other side files a motion to request you to
55
do something or produce something, you can file a motion to
deny or object to their requests. It is very useful to resist them
when they do something to harass you and this is one way to
do it.
In doing so, you will need to come up with some good
argument about why you are denying or objecting to their
motion. Otherwise, the judge could assess you lawyer fees if
your objection is deemed frivolous. Read the caselaw of
Yakavonis V. Dolphin Petroleum, Inc. in the appendix for a
definition of frivolous.
If their document is a request for information, you can
always include an argument that it is invading your right to
privacy, which is guaranteed by the constitution. However, it is
best not to use this in matters of financial discovery as the
financial status of the parties is vital for the court to make a
ruling and they need the facts obtained from discovery upon
which to base to base the ruling. Also, there is case law
supporting the requirement for financial discovery. Besides,
you don’t want the other side using your arguments against you
in certain situations.
Q Motions to Dismiss
These are motions that either side can use. Read their
allegations and you can possibly file a motion to deny any of
their motions to dismiss.
If combined with some violation of your civil rights
clauses (such as right to privacy) in any of your motions, here
is one case cite that you might be able to use:
Because the Plaintiff is pro se, the Court has a
higher standard when faced with a motion to
dismiss. White v. Bloom, 621 F.2d 276 makes
this point clear and states:
56
“A court faced with a motion to dismiss a pro se
complaint alleging violations of civil rights must
read the complaint's allegations expansively,
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.
Ct. 594, 596, 30 L. Ed. 2d 652 (1972), and take
them as true for purposes of deciding whether
they state a claim.” Cruz v. Beto, 405 U.S. 319,
322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263
(1972).
Moreover, "the court is under a duty to examine
the complaint to determine if the allegations
provide for relief on any possible theory."
Bonner v. Circuit Court of St. Louis, 526 F.2d
1331, 1334 (8th Cir. 1975) (quoting Bramlet v.
Wilson, 495 F.2d 714, 716 (8th Cir. 1974)).
Thus, if this court were to entertain any motion
to dismiss this court would have to apply the
standards of White v. Bloom. Furthermore, if
there is any possible theory that would entitle
the Plaintiff to relief, even one that the Plaintiff
hasn't thought of, the court cannot dismiss this
case.
Keep in mind that the other side can use this case cite
too.
Q Motion for Extension of Time a/k/a as a Motion to
Expand
If you find you do not have the necessary time to
respond in a timely manner to requests from the other side, you
can draft one of these to request an extension of time from the
court. You need to explain your reasons therein for the request.
57
Q Motion for Phone Appearance
Phone appearances can be used if it is inconvenient for
you to attend a non-evidentiary hearing. This is one where no
evidence is presented and is just involves a few minutes of the
court’s time such as a motion to compel. Evidentiary hearings
don’t normally allow telephone appearances but it is possible
in some cases where people live out of the state. With this
motion, you are asking the court’s permission to attend by
phone.
Being there in person gives you a better chance to
interact with the judge and the opposition. Remember, you
want to get the judge to like you and to hopefully gain their
confidence. This is hard to do over the phone.
You might wonder what the difference is between a
hearing and a trial. Essentially, they are the same thing only a
trial last longer than a hearing. But the procedures in either are
usually the same.
Q Motion for Referral to General Master (Magistrate)
(Form 12.920(a))
A general magistrate is a lawyer appointed by a judge
to take testimony and recommend decisions on certain matters
connected with a divorce. These recommendations are then
reviewed by the judge and are generally approved unless
contrary to the law or the facts of the case. The primary
purposes of having general magistrates hear family law matters
are to reduce the costs of litigation and to speed up cases.
Author’s Note: In 2004 the references to the term
Masters were changed to Magistrate. Some of the forms
have not been updated with this ruling.
Either party may request that their case, or portions of
58
their case, be heard by a general magistrate by filing Motion
for Referral to General Magistrate, Florida Family Law Rules
of Procedure Form 12.920(a). You must also prepare an Order
of Referral to General Magistrate, Florida Family Law Rules of
Procedure Form 12.920(b), to submit to the judge assigned to
your case.
Many times, the court, either on its own motion or
under current administrative orders of the court, may refer your
case to a general magistrate. Even in those instances, you may
be required to prepare and submit an Order of Referral to
General Magistrate, Florida Family Law Rules of Procedure
Form 12.920(b), to the judge.
Once a general magistrate has been appointed to your
case, the general magistrate will assign a time and place for a
hearing as soon as reasonably possible after the referral is
made. The general magistrate will give notice of that hearing to
each of the parties directly or will direct a party or lawyer in
the case to file and serve a notice of hearing on the other party.
If you are asked to send the notice of hearing, you will need to
use the form entitled Notice of Hearing Before General
Magistrate, Florida Family Law Rules of Procedure Form
12.920(c). Regardless of who prepares the notice of hearing,
the moving party (the one who requested referral to the general
magistrate) is required to have the notice properly served on
the other party.
One of the things to consider in allowing a magistrate to
preside over your case is whether or not you have been receiving
favorable treatment from the present judge. In some cases it is
advantageous to have “another pair of eyes,” such as an appointed
magistrate, view your case. If you want to retain the present judge or
don’t want the magistrate to preside for any reason at all, then all you
need do is file an objection to the magistrate within the time period
allotted after your notification of their referral to the case.
You can object merely by saying you object to him.
You need not give any reason. Read Fla. Fam. L. R. P. Rule
12.490. General Magistrates
59
Q Motion to Strike (See example in Appendix)
You will want to read in further detail Fla. R. Civ. P
RULE 1.140. DEFENSES where it states:
(b) How Presented. Every defense in law or
fact to a claim for relief in a pleading shall be
asserted in the responsive pleading, if one is
required, but the following defenses may be
made by motion at the option of the pleader: (1)
lack of jurisdiction over the subject matter, (2)
lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to
state a cause of action, and (7) failure to join
indispensable parties.
(f) Motion to Strike. A party may move to
strike or the court may strike redundant,
immaterial, impertinent, or scandalous matter
from any pleading at any time.
Essentially, you could use it in response to a motion
filed against you if their motion had any of the above attributes.
Q Appendix to Motions
Author’s Note: Here is an interesting scenario that I
heard about that could prove useful to you in
introducing material to the court at the last minute.
Let’s say that you had filed a motion of some sort and
didn’t want to give the other side much time to consider
it or develop a defense. One technique you could use is
to file the motion but leave out the really “heavy”
supporting proof you have to make. You then send a
notice of hearing at the same time or at a later date
60
setting the date and time of the hearing.
On the day of the hearing/trial, you would then file the
appendix to the motion with the clerk of court. You
would use the same title as your motion to deny
contempt and only add the word “Appendix” to it.
Somewhere during the hearing, when it is your turn to
make your presentation, you present a copy to the
opposing side (indicating on the certificate of service
that it was personally served that date) and one to the
judge. Now you can proceed with your case and use it
as support.
Depending upon what you have in the appendix, you
might have to admit it into evidence. The book “How
To Represent Yourself In Court” indicated in the
previous chapter on Research gives further details on
admitting evidence.
Notices
Q Notice of Compliance
Anytime you receive a request for information, records,
etc. and you respond to the other side by sending it directly to
them, you will need to file this notice with the court. It will be
essentially the same form as Form 12.932, Certificate of
Compliance With Mandatory Disclosure indicated above. Just
change the title and adapt it to be in agreement with what you
provided to the other side.
This is your proof to the court that you have complied
with the request of the other side.
Q Notice of Hearing (Form 12.923)
61
Anytime you have set a hearing before a judge, you
must send notice of the hearing to the other party.
IMPORTANT: If your hearing has been set before a general
magistrate, you should use Notice of Hearing Before General
Magistrate, Florida Family Law Rules of Procedure Form
12.920(c).
It is good practice to send a copy of this notice to the
judge’s judicial assistant along with any motion(s) that will be
heard at the hearing. Make note that you can combine a Notice
of Hearing with a Notice of Appearance by Phone on the same
document as shown by the sample in Appendix. Be sure to give
the other side adequate notice time which should be at least 7
days.
Q Notice of Hearing Before General Master (Magistrate)
(Form 12.920 (c))
In Florida, this is a standard form that is supplied by the
state and can be found on their website mentioned above.
Q Notice of Hearing on Motion for Contempt/
Enforcement (Form 12.961)
Use this form anytime you have set a hearing on a
Motion for Contempt/Enforcement, Florida Supreme Court
Approved Family Law Form 12.960, for a support matter under
rule 12.615, Florida Family Law Rules of Procedure. Before
you fill out this form, you should coordinate a hearing time and
date with the judge’s judicial assistant or hearing officer and
the other party.
Q Notice of Trial
(Form 12.924)
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Generally, the court will hold trials (or final hearings)
on contested cases. This form is to be used to notify the court
that your case is ready to be set for trial. Before setting your
case for trial, certain requirements such as completing
mandatory disclosure and filing certain papers and having them
served on the other party must be met. These requirements may
vary depending on the type of case and the procedures in your
particular circuit.
In some circuits you must complete mediation or a
parenting course before you can set a final hearing by using a
Notice of Hearing (General), Florida Supreme Court Approved
Family Law Form 12.923, or other appropriate notice of
hearing form. Other circuits may require that you set the trial
using an Order Setting Trial. Contact the clerk of the circuit
court, family law intake staff, or judicial assistant to determine
how the judge assigned to your case sets trials. For further
information, you should refer to the instructions for the type of
form you are filing.
For trials and hearings (other than Uniform Motion
Hearings detailed later), the usual procedure to coordinate a
hearing is to contact the judge’s judicial assistant (JA) and
request available times for the trial. You then contact the other
side’s secretary and get agreement on one of the available
dates. After an agreement on times, call the JA back and
confirm the date.
In the notice you will prepare, and under the title,
indicate that the date was co-coordinated with opposing
counsel’s secretary (give their name). File a copy with the
clerk, send a copy to the opposing side, and send a copy of the
notice along with a copy of any motions to be heard to the JA.
Q Notice of Phone Appearance (See sample in Appendix)
In this situation, you are advising the court that you will
attend by phone. You can only do this for non-evidentiary type
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hearings. For evidentiary hearings, you need to make a motion
for a phone appearance in order to get the courts permission.
Be sure to send a copy of this to the JA to be sure the
judge sees it prior to either type of hearing and include copies
of any motions to be heard.
Miscellaneous Documents
Q Certificate of Service
(Form 12.914)
Both parties must send copies of all documents or
papers they file with the clerk to the other party or his or her
lawyer, if he or she has one. Each time you file a document,
you must certify that you provided the other party with a copy.
Many of the Florida Family Law Forms already have a place
above the signature line for this certification.
If a form you are filing has a certificate, you do not
need to file a separate Certificate of Service. Florida Supreme
Court Approved Family Law Form 12.914. However, each
time you file a document that does not have a certificate like
the one above, you must file a Certificate of Service, Florida
Supreme Court Approved Family Law Form 12.914, and send
a copy of the document to the other party. This includes letters
to the judge.
All of the documents that you will be filing should
incorporate a Certificate of Service as part of the document and
placed at the end as a last page of your filing. With few
exceptions, all the filings can be made via U.S. Postal Service
first class mailing. Use certified mail if you want to get
confirmation of delivery and priority mail (with optional proof
of delivery) if it needs to get there quicker.
After any documents are completed and any financial
affidavit notarized, they need to be filed with the court. To file
the documents, take or mail them to the clerk of the court
where the case is venued. Check with the clerk to verify their
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filing procedures and number of copies they will require. They
may vary from county to county.
Normally, you will file an original with the clerk and
have a second copy for yourself to which you will have the
clerk date-stamp. It is good practice to sign the original in blue
ink so you can visually determine easily that it is an original
signature. You will also need to send a copy to your ex-spouse
or their lawyer as specified in your Certificate of Service,
which is the last page of your filed document.
Since you are filing any of these documents using the
same case number as was on your final court order of
dissolution it is considered as a filing in an ongoing case that
had been filed previously and there will be no filing fees for
any other filings associated with this case number.
Documents For Supplemental Petition For
Modification Of Alimony
Q Supplemental Petition For Modification Of Alimony
(Form 12.905(c))
In the event your financial situation has undergone what
could be classified as a “a substantial change in
circumstances” then you might want to consider filing this
document. A rough guideline to use for a substantial change in
circumstance would be a reduction in your income of
approximately 20%. A permanent change such as reaching the
retirement age, with a corresponding reduction in income
would be a good example.
If this is your situation, then you will want to obtain our
book: “How To Modify Alimony Payments” which goes into a
lot more detail on the subject and can be found in the bookstore
at www.panama-publishing.com. This book will just give you a
brief outline of some of the documents involved to acquaint
you with them
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By filing a Supplemental Petition For Modification Of
Alimony (SPMA), you will change the dynamics of your case
by catching the opposition completely by surprise and doing
something they would not normally expect from a pro se. And,
you are entirely within your rights to do so as long as you can
show a “substantial change of circumstances” financially since
your divorce.
A SPMA can be used in conjunction with a defense
used in contempt of court. This is an excellent option to use as
there is a good chance that you will not only be able to stop the
contempt charges, but to have your alimony burden reduced to
a more bearable level. It is possible for you to go even one step
further and file a “Supplemental Petition For Modification Of
Alimony and Termination.”
In doing so, you will be using the rules of the road to
your advantage. The SPMA will give you the ability to go on
the offensive. Filing this petition requires both parties to
provide certain information on their financial status.
You will thus be able to obtain valuable information on
your ex-spouse’s financial situation that will give you
ammunition to use in your defense against contempt….that of
showing her continuing “need” for alimony payments. Ideally,
it would be advantageous and a matter of “judicial economy”
to have the trial for the modification of alimony held at the
same time as the motion for contempt.
A SPMA will require a full trial, as it is an evidentiary
one. This trial is not one that will be able to take advantage of
the Uniform Motion Calendar mentioned below, as it will
require too much time.
The documents used in conjunction with a SPMA might
possibly include all the ones mentioned above for contempt in
addition to the ones indicated below.
Q Financial Affidavit (Forms 12.902(b) & (c))
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Both you and your ex-spouse need to fill out one of
these. You will submit yours with the SPMA and two forms
need to be sent to your ex for them to fill out and return one to
you. The opposition will probably request one in conjunction
with their motion for contempt.
This form is available in two versions and should be
used when you are involved in a family law case which
requires a financial affidavit and your individual gross income
is either under or over $50,000. The short form is for income
under $50,000/year (form 12.902(b)) and long version is for
income $50,000/year or over (form 12.902(c)). After
completing this form, you should sign the form before a notary
public or deputy clerk.
Q Standard Family Law Interrogatories for Modification
Proceedings
(Form 12.930(c))
After filing the SPMA, this is the next form you definitely
need to send to the other side. It is the main one that will give you
most of the ammunition you will need for your case preparation. You
do not need to file this with the clerk of court. Instead, you file the
Notice of Service of Standard Family Law Interrogatories form listed
next.
This form should be used to ask the other party in your
case to answer certain standard questions in writing. These
questions are called “interrogatories,” and they must relate to
your case. If the other party fails to answer the questions, you
may ask the judge to order the other party to answer the
questions by filing a motion to compel.
The questions in this form should be used in
modification proceedings and are meant to supplement the
information provided in the Financial Affidavits, Florida
Family Law Rules of Procedure Form 12.902(b) or (c).
You should read all of the questions in this form to
determine which questions, if any, the other party needs to
answer in order to provide you with information not covered in
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the financial affidavit forms. If there are questions to which
you already know the answer, you may choose not to ask them.
Q Notice of Service of Standard Family Law
Interrogatories (Form 12.930(a))
You should use this form to tell the court that you are
asking the other party in your case to answer certain standard
questions in writing. You do so by filing, in the usual manner,
this completed document with the clerk of courts.
Q Certificate of Compliance with Mandatory Disclosure
(Form 12.932)
Mandatory disclosure requires each party in a
dissolution of marriage case to provide the other party with
certain financial information and documents. These documents
must be provided by mail or hand delivery to the other party
within 45 days of service of the supplemental petition for
modification on the respondent. The mandatory disclosure rule
applies to all supplemental dissolution of marriage cases,
except cases where the respondent is served by constructive
service and does not answer. You should use this form to notify
the court and the other party that you have complied with the
mandatory disclosure rule.
Each party must provide the other party with the
documents listed in section 2 of the form if the relief being
sought is permanent regardless of whether it is an initial or
supplemental proceeding. Of the documents listed on this form,
the financial affidavit and child support guidelines worksheet
are the only documents that must be filed with the court and
sent to the other party; all other documents should be sent to
the other party but not filed with the court.
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Q Motion for Default (Form 12.922(a))
If the other party has failed to file or serve any
documents within 20 days after the date of service of your
SPMA, you may ask the clerk of the circuit court to enter a
default against him or her by filling out this form and filing it
with the court. Generally, a default allows you to obtain an
earlier final hearing to finish your case. Once the clerk signs
the default, you can request a trial or final hearing in your case.
To obtain a default, you will need to complete Motion
for Default, Florida Supreme Court Approved Family Law
Form 12.922(a). You will then need to file your motion for
default along with the Default, Florida Supreme Court
Approved Family Law Form 12.922(b), so that the clerk can
enter a default for you if your motion is proper.
A useful tool you will find for setting hearings of a nonevidentiary type and whose duration only requires up to about
10 to 15 minutes is the Uniform Motion Calendar (UMC.)
These are sometimes referred to by different names in different
jurisdictions, but most all courts have this type of set-up. You
will learn about this in the next chapter.
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Uniform Motion Calendar
(UMC)
T
his is a tool used by the courts and lawyers to get rapid
hearings on non-evidentiary type motions such as
motions to compel or other simple motions. The
hearings that are scheduled on the UMC are on a first-come,
first-served basis and not at a scheduled time.
Here is an explanation of the procedure for one jurisdiction in
Florida:
a) In the 15th Circuit Court of Florida, they hold UMC
hearings on Tuesday through Thursday from 8:45 a.m.
until about 10:00. You don’t need an appointment or
anything. All you do is just show up and sign in. The
criteria here is the judge only wants to spend about 10 15 minutes per motion. You are allowed to present 1 or
2 motions.
b) When you want to set a hearing, it is good practice for
you to contact the opposing lawyer’s secretary to
arrange a mutually agreeable date. You shouldn’t get
much if any objection from the opposing lawyer as
attending the hearing allows them to bill their client for
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about 1.5 or more hours of time at their regular hourly
rate.
c) You then file your motion (if you haven’t already done
so) and send the other side a Notice of Hearing along
with a copy of the motion. Send a copy of the motion
along with a copy of the Notice of Hearing to the
judge’s judicial assistant. Watch your time limits for a
reasonable period of advanced notice. Seven days
seems to be good minimum figure.
d) Show up at the hearing and sign in on a docket sheet at
the door to the hearing room.
When you go to the hearing, be prepared with the following:
a) Copy of the motion for the judge
b) Create a final order that the judge can sign indicating
that the motion presented at the hearing is
“Granted/Denied (see sample in appendix.)” Give him
enough copies so that the clerk, opposing lawyer, and
yourself will all get one. Be sure to include unstamped
and addressed envelopes for the judge to send out the
copies to the parties.
c) Two copies of anything you want to present to support
your argument. One for the judge and one for the
opposition.
d) An outline script of what you want to say. Do not leave
your argument up to chance and try to ad lib it. WRITE
IT DOWN! Keep it short and present your basic
arguments for your motion in just a few minutes.
Verbally rehearse you script over and over so the
presentation will be fairly smooth in court. I have found
that the judges don’t appear to have read the motions
prior to the hearing, so your verbal presentation will be
weighted heavily. Be ready for any and all types of
allegations from the opposing counsel.
e) Keep your cool. Keep quiet when the other side is
talking no matter what they say. You will have a chance
at rebuttal. However, it doesn’t hurt to nod your head in
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disagreement when they are not being truthful. The
judge notices this. Be polite to the judge and if you
disagree with him, say something like “your honor, I
respectfully disagree with….” and state your reasons.
NEVER ARGUE WITH THE JUDGE!!!
f) Expect the unexpected. No matter how well you
prepare either the judge or opposing counsel will
probably throw something your way that will confuse
you and knock you off your stride. You are playing on
their home ground. They know the rules and you don’t.
Don’t worry. If you are not sure of something, ask the
judge. They are fairly tolerant of a pro se and will
explain procedures to some extent. If you foul up,
acknowledge it as a good faith error and promise never
to do it again.
The more hearings you set, the more the ex will have to
pay out of their own pocket. This technique can work very well
when you are on the offensive if your ex has been negligent in
responding to your requests for discovery or not obeying court
orders. It will be a deterrent to them if they are not playing by
the rules, as they should.
Lawyer fees can for attending minor non-evidentiary
hearings can amount to around $500 per hearing or more. If
you have a legitimate hearing and not one for a frivolous
motion, the court will probably not assess you fees to pay for
the spouse’s lawyer.
Now that you are familiar with all of the basic types of
documents that you will encounter, we will next look at some
things you need to consider when filling them out so that they
work to your benefit. You need to understand how some of
documents will be used. This is discussed in the next chapter.
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73
Tips On Preparing Documents
W
hat should you do with documents received from
the opposition and what do you need to know when
filling out your documents? What is the objective
you are trying to achieve with the court?
The first thing you will want to do is thoroughly read
through any document you receive from the opposition. If it
contains any references to statutes, caselaw, Florida Family
Law Rules of Procedure, or Florida Rules of Civil Procedure,
you will need to read each one and determine if they are
accurate and related to your case. Make sure it applies to you
and that their claims and allegations are valid. You will also
want to see if the rules specify some requirement that needs to
be met that is lacking by the opposition.
By doing this, you will become familiar with the laws
and how they apply to you. In learning this, it will also teach
you what you can demand of the other side. Whether you
realize it or not, the other side will often show you things that
you can do and how to do them. Just copy what they do and do
the same in return on them. By knowing the rules, you will
know that what they can do to you, and what you can in turn do
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to them. Learn from your opponents. Then find out where their
weaknesses are.
Never take it for granted that the opposing lawyer
knows what they are doing just because they are lawyers.
Frequently, they have paralegals working for them and they
tend to do things repeatedly without realizing that there might
have been changes implemented of which they were unaware.
A number of times I have caught the opposition in error
and have capitalized on it by revealing their lack of knowledge
to the court in my responsive motions to deny or object. Never
hesitate to capitalize on an opposition’s error.
One of the key things of which to be aware is to stay on
top of your filings, deadlines for filings and responses and to
keep track of where you are at all times. One of the ways you
can do this is to keep a “timeline” listing of your filings and
due dates. It helps immensely to keep them on a “reminder”
calendar on your computer.
Unless the opposing lawyer has shown that they are
“playing fair” in dealing with you, it is best to not give them
any leeway unless they earn it in some reciprocal manner. You
can be sure they will stay on top of you.
Keep the pressure on for them to perform with filing
motions to compel, motions for contempt, etc. and with notices
of hearings for those motions when the time for the other side’s
response is past.
Financial Affidavits
The main thing upon which your case should be
focused is your “present ability to pay.” Your financial
affidavit will be the lynch pin upon which the judge will decide
whether or not to hold you in contempt. That is what you will
concentrate on when filling out this document.
If you will recall, when you were divorced, your final
judgment and alimony support payment was based on the
financial circumstances that existed at that time. Those
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circumstances are what determined the amount you had to pay.
Whether or not you think you got a fair shake at the time of the
final hearing doesn’t matter now. Now is the time to prove
your case to the judge afresh.
The burden will be on you to convince the judge why
your circumstances have changed and that you have a valid
reason not to be held in contempt. To do this, you will need to
provide certain evidence to establish your claim.
The first thing you will need is a current financial
affidavit. For your entries, be accurate and have back-up
receipts, tax records, pay stubs, etc. to substantiate your entries.
You have to do this wherever a paper trail might exist so that
the opposing lawyer cannot discount your entries.
Your objective here is to present an appearance of
complete honesty with the court. If there is anything that could
be deemed by the court as falsification, they will accuse you of
coming to court with “unclean hands’ and will look down on
you very unfavorably.
In preparing the financial affidavit, be sure to take into
account every line item and put something reasonable in there.
The objective is to show that your expenses exceed your
income. You want to show them that you are actually living on
a substandard basis due to the hardship of your payments in
relationship to your diminished income since the divorce.
For those items where no records exist like food, cash
outlays for items, etc., use your best estimate of what they
might be with the notation “est.” next to the amount entered
e.g. food – $500 est.. This is an area that some people might
use to their advantage since it would be hard for the opposition
to prove that “reasonable” amounts are anything other than
that. Let your conscience be your guide here.
Be sure to be thorough in listing the items for the
“expense” category, as there are frequently things you purchase
but ignore to record. You can probably put them in a catchall
category called “Miscellaneous.”
If you have any bankruptcies or judgments against you
such as foreclosures or other money judgments that are
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recorded in the public records (with the clerk of court where
they were incurred), be sure to include them. It wouldn’t hurt
to make sure that you have copies of them either. Copies can
be ordered from the clerk if you don’t have the originals.
The goal of the financial affidavit is to be able to show
that your expenses and liabilities are greater than your income
thereby giving you a negative cash flow each month. It's all
right if your affidavit shows you have more expenses than
income and indicates a negative cash flow.
The purpose of this financial affidavit is to substantiate
your claim that you do not have the ability to make your
alimony payments based on your present income and standard
of living. All you need do is to have an explanation to the court
in the event you are asked how you handle the negative
amount.
One of the obvious questions that a lawyer might ask
you is “how you can afford to have a negative cash flow each
month and maintain the level of expenses shown on your
affidavit?” The simple answer to that is: “the financial affidavit
was based on what I “should” be spending each month to
maintain a minimum standard of living. It should be obvious to
you that since I do not have that amount of money to maintain
it, I need to spend less to do so. I do this by not buying as much
food as I need; I do it by not buying as much gas as I should; I
do it by not buying the clothes that I need; I do it by deferring
needed home and vehicle repairs;” etc. You get the drift.
Author’s Note: Should the other side request
documentation from you, a good technique to
remember is to be overly generous with them by
supplying them with copies of all the data you can
scrape up e.g. receipts, invoices, paid bills, etc. The
operative saying in this situation is: “more is better.”
The purpose here is to send them un-summarized items
with which they will have to sort out, compile and
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spend a lot of time sifting through to summarize them
in the fashion that they want.
Most banks have banking online. I would suggest that
you avail yourself of this feature (usually at no cost) so that
you can print out a statement showing the balance as of the
date of the financial affidavit. Obviously, you want the
statement to show the lowest possible balance for the hearing
to substantiate your position of not having much cash on hand
or in savings.
The Ex-spouse’s Financial Affidavit
If you are going to file a SPMA, then you will need to
examine your ex-spouses “need” for alimony which will be
determined from her financial affidavit and it is this document
that you need to tear apart to show inaccuracies.
Concurrently with your submittal of your financial
affidavit to the other side, the ex has to provide the same
information in response to your request for financial data. With
a filing of an SPMA, the requirement that both side provide
current financial data is mandatory.
If the other side doesn't comply in a timely manner
(within approximately 45 days), you get to file a motion to
compel and notice of hearing with the court requesting that
they be compelled to provide you with that data.
After receiving the affidavit from your ex-spouse, take
it apart, line-by-line to see if there are any inconsistencies.
Cross check everything on the affidavit against the supporting
documents and your knowledge of their spending habits. For
every item of consequence, verify the values used.
If you have a lawyer, I'd almost guarantee that at hourly
rate that they charge, they are not going to spend as much time
on a bit of detective work like you will. This is especially true
if you are financially strapped and defending yourself pro se.
This will be time well spent. Besides, you have an advantage of
78
knowing your ex’s habits and have a better idea of where any
discrepancies might be.
To try and prove that your ex has falsified or made
material misrepresentations on their financial affidavit is
extremely well worth your time, so don't neglect it. Everyone
takes it for granted that what is submitted is correct. Don't
make the error of that assumption. Verify it. There’s a saying:
“figures don’t lie, but liars do figure.”
One of the first rules of litigation is to discredit the
opposition by showing they have unclean hands and catch them
in material misrepresentations of the facts. If you can do this
early on, then anything to which they testify later will be
suspect.
When you find discrepancies anywhere, you can use
this to your advantage in preparing your offensive at a court
hearing. Also, falsification of their affidavit is punishable by
fines and incarceration. So here's your chance to get back at
them and turn the tables around at the hearing.
The point being made here is that you don't always
have to be on the defensive. With this information, you can go
on the attack, which the other side won't expect. Very few
people who are pro se does this and the opposition will be
totally unprepared for it. Be sure to read our book “How To
Modify Alimony Payments” for more information on how to
go about doing this.
Now that you have prepared your documents and
gathered data on your ex-spouse, you are now ready to start
putting your case together and plan your strategy for the
upcoming trial. This will be outlined in the next chapter.
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Tactics And Techniques For
Defense Against Contempt
H
ere is where you put into action those things that will
hopefully keep you away from contempt of court and
out of jail.
The motion for contempt is most likely the first
document you will receive from the opposition letting you
know that you are not meeting the requirements of a court
order. You need to respond to this as soon as possible.
A typical response to a motion for contempt would be a
Motion to Deny Contempt document in which you would give
the reasons to the court why you shouldn’t be held in contempt.
Unless the other side requested your financial affidavit
under discovery, I would prefer to hold off giving the other
side my financial affidavit and bank statements until the day of
the hearing. The same holds true for any other documents that
will support your defense. The less time the opposition has
your defense documents in their hands, the less preparation
they can make in rebuttal and thereby weaken your defense.
The same holds true for the responses you are requested
to provide. Time is on your side and the longer you take to
respond buys you more time to work out any details needed to
defend yourself.
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Unless the motion specifies the time in which requested
material is to be sent to them, you will want to check to see
what the Fla. R. Civ. P or Fla. Fam. R. P. allows you for time
of a response. Then just be sure you comply with that rule by
the time it is due. There is no advantage to sending it early.
The first thing you will want to do is thoroughly read
through the motion for contempt. If it contains any references
to statutes, caselaw, Florida Family Law Rules of Procedure, or
Rules of Civil Rules of Procedure, you will want to go to find
out about each one and determine if they are accurate as related
to your case. You will also want to see if the rules specify some
requirement that needs to be met as to procedure that is lacking
in the opposition’s documentation.
On occasion the opposition will reference case law.
Check out any caselaw citations (cites) that they might use to
see if they are current cases and haven’t been overturned. This
procedure is also known as “Shepardizing” and can be found in
the book “Legal Research” referenced earlier. If you go to
Loislaw, you can do it with “Globalcite” and with WestLaw
you can use its “KeyCite” features. With lexisONE, you are
unable to do this unless you pay for it.
Next, you will want to consider drafting the motion to
deny the contempt. You can see an examples of the various
motions on the www.abolish-alimony.org website. All you
need do is to modify the particular facts to match your case.
If your state is not Florida, you will need to check the
forms requirements of your state. The Rules of Procedure for
your state usually have standard forms that you can use. There
probably won’t be one entitled “Defendant’s Motion To Deny
Plaintiff’s Motion For Contempt” but you can use most any
“motion” form and adapt it to your needs.
In the motion, you will want consider the possibility of
including the two clauses below. The first one preserves your
right for an appeal based on a challenge that the alimony
statutes violate your constitutional rights and the other one is
self-explanatory.
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“It is my position that the Florida
alimony statutes violate the state fundamental
right of privacy in the context of personal
decisions relating to marriage and divorce. Also
the alimony statutes violate the Florida
constitutional separation of powers."
**********
“Incarceration is an improper
enforcement remedy for alimony and alimony
arrearages. Alimony is a debt not a duty. The
court's reliance on Phelan v. Phelan, 12 Fla. 449
(1868) is misplaced. Phelan does not hold that
alimony is a duty to the former wife and to
society. Also, incarceration as an enforcement
remedy is contrary to the public policy
established in Connor v. Southwest, 668 So. 2d
175 (Fla. 1995). “
To file the documents, take or mail them to the clerk of
the court where the case is venued. Normally, you will file one
copy with the clerk, have a second copy for yourself to which
you will have the clerk date stamp it. You will also need to
send a copy to your ex-spouse or their lawyer as specified in
your Certificate of Service, which is the last page of your filed
document.
Once your motion is filed, and if you haven’t received a
notice of hearing on the contempt motion from the other side
yet, call up the JA to get some available dates for a hearing.
Then call the opposing lawyer’s secretary to see which one is
agreeable with them where both motions can be heard at the
same time.
If they have set a hearing date tell them you would
appreciate it if they will send out an amended notice to include
your motion to deny contempt. It is a courtesy to do this and
you shouldn’t have any problem with the secretary, as they are
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usually co-operative. If they won’t send out an amended notice,
you might want to send out your own notice of hearing that has
the same date and time as the one they had set earlier.
Your motion to deny contempt is still part of the
original case and as such, there will be no filing fees. In other
states, the fee policy may vary from this. You can file as many
motions, etc. as is necessary to handle your case without any
filing fees as long as they are subsequent filings with the same
case number.
The only time you might be hit with costs is if you lose
at a hearing and the judge imposes lawyer’s fees and costs to
be paid to the opposition. However, this could prove to be a
Catch-22 situation where, if you are unable to pay you exspouse their alimony payments, most likely you would not
have the funds to pay the lawyer and therefore you could be
held in contempt again.
But not to worry. If you are unable to pay and have no
present ability to pay, you can fall back on this guidebook
again. It happened in my case and there’s a good chance you
will not be made to pay the lawyer’s fees and costs.
Remember, they can’t get blood from a stone. In addition,
lawyer’s fees are normally considered a “money judgment” and
incarceration is not an option for enforcement.
The next notice you will receive will be a notice of
hearing where the motion for contempt, and motions you might
have filed, will be heard. This is a document you will want to
look over carefully since a there is a good chance it might be
defective as described in the next chapter.
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Notice of Hearing
W
hat is a notice of hearing and what should you do?
It is the official notification you receive of the
hearing whereby the motion for contempt, which
was sent to you earlier, is scheduled to be heard. This is a very
important hearing which you most definitely don’t want to
miss attending.
There are basically two different types of hearings,
evidentiary and non-evidentiary. At the non-evidentiary one,
there is no evidence produced by either party and you can
request an appearance by phone. At the evidentiary one, such
as a contempt hearing, evidence will usually need to be
produced to show that you are not in contempt and you will
need to attend.
If you live in one state and the hearing is in another,
this might be a problem but you can make an attempt to appear
by phone. To do this you can make a motion to appear by
phone. It is a simple document and there is a sample in the
appendix. If you hear nothing back, there is a good chance it
will happen. But it doesn’t hurt to check with the judge’s
assistant (called a judicial assistant or JA.) prior to the hearing
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date to see if a phone appearance has been granted. You can
sometimes find this out by viewing the clerk of court’s online
docket.
You need to be by the phone at the appointed time with
script and notepad at the ready. Sometimes it can be hard to
hear what is being said especially by the opposing counsel who
is normally further away from the mike. Don’t hesitate to ask
them to repeat anything you can’t make out or understand. Use
the same decorum as if you were in court.
Notices of hearings quite often are defective because
since they frequently pass between lawyers, each of them tends
to ignore the defect because they will be representing you and
probably consider it a common courtesy between the lawyers
not to mention the defect. I have found this to be a frequent
occurrence in many of the notices that I have seen that were
sent to me and other people. However, since you are defending
yourself pro se you will want to be aware of these defects
because they will buy you some time or provide grounds for an
appeal.
The place to find what a notice of hearing should
contain in Florida can be found in the Fla. Fam. L.R.P. as
follows:
RULE 12.615 CIVIL CONTEMPT IN
SUPPORT MATTERS
(a) Applicability. This rule governs civil
contempt proceedings in support matters related
to family law cases. The use of civil contempt
sanctions under this rule shall be limited to
those used to compel compliance with a court
order or to compensate a movant for losses
sustained as a result of a contemnor’s willful
failure to comply with a court order. Contempt
sanctions intended to punish an offender or to
vindicate the authority of the court are criminal
in nature and are governed by Florida Rules of
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Criminal Procedure 3.830 and 3.840.
(b) Motion and Notice. Civil contempt may be
initiated by motion. The motion must recite the
essential facts constituting the acts alleged to be
contemptuous. No civil contempt may be
imposed without notice to the alleged
contemnor and without providing the alleged
contemnor with an opportunity to be heard. The
civil contempt motion
and notice of hearing may be served by mail
provided notice by mail is reasonably calculated
to apprise the alleged contemnor of the
pendency of the proceedings. The notice must
specify the time and place of the hearing and
must contain the following language:
“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.”
This notice must also state whether electronic
recording or a court reporter is provided by the
court or whether a court reporter, if desired,
must be provided by the party.
The part you want to look for is the bold and italicized
highlighted print in (b). Those two clauses about the “bodily
attachment” and the “court reporter” have to be there. If either
one or both of the items are not in the notice, then it is
defective. The wording “must” in the rule is the determining
factor that governs how the notice should comply with the law.
In addition to the above clauses that need to be
included, you should have adequate notice of the hearing in
order to prepare for it. But first, you need to have received a
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copy of the motion for contempt. If you didn’t receive it, then
the notice of hearing is defective.
The case of Woolf v. Woolf, 901 So.2d 905 (Fla.App. 4
Dist. 2005) will give you an idea of how the court looks at this:
“Florida Family Law Rule 12.615 (2004)
requires the following for notices of hearing of
civil contempt in support matters:
The notice must specify the time and place of
the hearing and must contain the following
language:
"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."
The above warning serves as a predicate for
the issuance of a writ of bodily attachment
should the alleged contemnor not appear. See
Martyak v. Martyak, 881 So.2d 48, 49-50 (Fla.
4th DCA 2004). This language was not
contained in the "notice of hearing" in this case
(i.e., the order which stated that contempt would
be heard at the March hearing if the motion was
filed).
The former husband contends that the hearing
officer erred in going forward with the contempt
motion without proper notice. The former wife
argues that since the former husband appeared
at the hearing, the language contained in the
notice is irrelevant and that any defect was
waived. The former wife cites analogous
situations where the court has found technical
notice requirements unenforceable due to
waiver or similar grounds. See Patry v. Capps,
633 So.2d 9, 12 (Fla. 1994) (holding that where
the defendant acknowledges timely receipt of
notice, strict compliance with certified mail
provision is not required);Chumacher v. Town
of Jupiter, 643 So.2d 8 (Fla. 4th DCA 1994)
(stating that a landowner may waive or be
estopped to assert the right to notice where he
appears at the hearing and is able to fully and
adequately present any objections to an
ordinance); Anderson v. State, 637 So.2d 971
(Fla. 5th DCA 1994) (stating that if the
defendant had actual notice of state's intent to
seek habitualization, strict statutory compliance
in notice form is unnecessary). These authorities
are persuasive by analogy and we consider the
notice language waived by the defendant's
actual appearance at the hearing.
The more fundamental problem with the
notice, however, was not waived. Here, the
former husband was not provided with the
contempt motion, which activated" the
contingent "notice of hearing," until two days
before the hearing.
While a person facing civil contempt is not
entitled to all of the due process rights afforded
to a person facing indirect criminal contempt, he
or she is nonetheless entitled to a proceeding
that meets the fundamental fairness
requirements of the due process clause of the
Fourteenth Amendment. Bresch v. Henderson,
761 So.2d 449, 451 (Fla. 2d DCA 2000). This
requires that the alleged contemnor be provided
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88
with adequate notice and an opportunity to be
heard. Id. Two days notice is insufficient notice
of a contempt hearing. Goral v. State, 553 So.2d
1282, 1283 (Fla. 3d DCA 1989); Harreld v.
Harreld, 682 So.2d 635 (Fla. 2d DCA 1996);
see also J.B. v. Fla. Dep't. of Children and
Family Servs., 768 So.2d 1060, 1066 (Fla. 2000)
(noting that two days notice has been held
insufficient when far less important interests
than parental termination is at stake) (citing
Montgomery v. Cribb, 484 So.2d 73, 75 (Fla. 2d
DCA 1986) (holding that two days notice is
insufficient for motion to strike)).The contempt
order must therefore be reversed and remanded
for a new hearing upon adequate notice.”
One thing you will notice is that there is no mention of
the “court reporter” clause in the above. Rest assured that it is
required and would give rise to an appealable basis should it
not appear in your document. No one has challenged it in the
court of appeals yet, but I feel certain that it carries the same
weight, as the other by the use of the word “must” in the
statute.
You might ask what is considered adequate notice prior
to a hearing. In my situation, the judge indicated that four days
was adequate but I would not send it out with less than 7 days
notice just to be sure. Keep in mind that when you received
your copy of the motion for contempt, it was possibly a number
of weeks prior to the notice of hearing and usually adequate
time to present some sort of defense to the court.
If you filed a motion to deny the contempt, then you
should file a notice of hearing whereby your motion will be
heard at the same hearing time and date as the opposition’s
motion for contempt. It is good practice and a courtesy to coordinate with the opposing lawyer for this. You can note this
co-ordination with the other lawyer on your notice of hearing
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that includes your motion to be heard along side the contempt
motion.
If the other side wants to give you a hard time and not
agree to a combined hearing, it would be my thought that you
could just file it anyway with some sort of notation that it is
being submitted in the interest of “judicial economy” and then
let them protest and defend their reason for objecting. I don’t
think a judge will buy the idea of them opposing you defending
yourself. However, I don’t think you will run into this problem.
Keep in mind that the lawyers are essentially highly
paid participants. Having a proceeding that will last longer
because of your intervention with a motion will prolong the
hearing and increase their billable hours accordingly for the
proceeding. Therefore it is unlikely they will object.
If the notice of hearing that they sent you is defective,
what can you do? You have several options:
1. You can attend the hearing. If you do, you are
essentially waiving any defense to the notice being defective.
At the hearing, you will be able to defend yourself according to
the examples presented in this book. If the court rules against
you, you can appeal to a higher court.
2. You can ignore the hearing and not attend. The
courts frown on this and will give your opposition just about
anything they asked for. More than likely, they will put out a
warrant for your arrest and immediate incarceration. If they do,
it would benefit you to have someone ready who is able to file
a Writ of Habeas Corpus indicating that the court was in error
since the notice was defective.
3. After receiving the notice of hearing, you can
possibly buy some time by filing something like a motion to
declare the notice of hearing void due to being defective. This
would be filed with the clerk and a copy sent to the judge’s
judicial assistant noting this. The amount time you will buy
will depend on how long it will take the judge to rule on your
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motion and for the opposition to redraft a new notice of
hearing.
Now you are ready to prepare yourself for handling the
hearing and presenting your defense. This is the subject of the
next chapter.
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Preparing For Court
W
hat points do you need to concentrate on for
making your presentation? What is your best
defense to avoid being held in contempt and
keeping out of jail?
At this stage, you now lay down your game plan for
what will transpire at the court hearing in front of the judge. It
is very much like a play, where everything is scripted out,
follows a prescribed procedure and in which you play the
leading role. A stellar performance will allow you to return
home unscathed and a free person.
The main thing upon which your defense should be
focused is “present ability to pay.” This will be the key point
upon which the judge will decide whether or not to hold you in
contempt and order you to pay a purge amount. At the worst
case, if you do have a “present ability to pay” it will help you
to make sure your demonstrable present ability to pay is at a
minimum so you will, hopefully, receive a lower purge
amount, some sort of installment payment plan or other similar
ruling that will keep you out of jail.
If you will recall, when you were divorced, your final
judgment and alimony support payment was based on the
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circumstances that existed at that time. It was what determined
the amount you had to pay.
When you go for your contempt hearing, there will be a
“presumption” that the final judgment order is still valid and
there has been no change of circumstances that should allow
you not to make your alimony payment. Read F.S. 61.14 (5)(a).
There is one qualification to the above presumption in
F.S. 61.14 (5) (a) which only applies to final orders of
dissolution entered after 1992. This means the "presumption of
ability to purge" only exists for final judgments entered after
1992. If your dissolution was prior to 1991 there is no
presumption of ability to pay...and the recipient must "prove"
ability to pay. Pompey v. Cochrane , 685 So.2d 1007
(Fla.App. 4 Dist. 1997)
The burden will be on you to convince the judge why
your circumstances have changed and that you had a valid
reason not to continue your alimony payments. The one thing
you do not want the judge to conclude is that your “inability to
pay” was, in reality, a “willful” and intentional act. To do this,
you will need to provide certain evidence to prove your claim.
The first thing you will need to show is a current
financial affidavit. The court will be looking for you to provide
proof to them that you are actually living on a substandard
basis due to the hardship of your current alimony payments in
relationship to your diminished income since the divorce.
Q Money in the Bank
Since the court will be looking to determine your
“present ability to pay” you need to have a copy of a bank
statement that will substantiate that you have little to no money
available to pay a purge. For instance, take your bank account.
Bank statements usually are sent on a monthly basis. This
might not be a good one to use to submit to the court as the
balance will not reflect how much money you have in there at
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the time of the hearing. It could also work against you if it
shows a higher balance than what you really have.
Instead, use the one from your bank’s online banking
site so that you can print out a statement showing the balance
as of a particular date….like the day before or the day of the
hearing for contempt. Obviously, the statement should show
the lowest balance possible for the hearing to substantiate your
position.
Q Credit Cards And Other Assets:
Remember, the court can look to your lines of credit to
pay the purge. If you have available credit, it is possible that
they can look to that for you to borrow against. Keep in mind
that the court doesn’t care about what happens to you or what
kind of debt you have to go into so long as you pay the money.
Since you have credit cards and let’s assume you have
good credit, it would probably work to your detriment to have
any still in your possession that still had available lines of
credit on them. If they are maxed out…no problem.
You might want to consider just having a bank debit
card to use. After all the dust settles from the contempt
proceedings, if you need a credit card, you can probably get
one without any problems. There is no shortage of banks
wanting your business if you have good credit.
The same applies to any other asset you might have
shown on your financial affidavit. As long as there is an asset
accessible to you that can be converted to cash right now, the
court wants their pound of flesh immediately and there is a
good chance they will go after it no matter how inconvenient it
is to you or your financial future.
QCourt Reporter
As a measure of protection, I would strongly advise you
to have a court reporter there. You might think this an
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unnecessary expense, but you will find it is well worth the cost
for the protection and benefits it will give you.
The court reporter will have two charges: 1) the cost to
attend and record the hearing and; 2) the cost per page of
finished transcript, if you decide to order a copy of the
transcript.
Prior to ordering a reporter for the hearing, you might
want to call the opposition lawyer’s secretary and ask if they
will be ordering a court reporter. If they do, which is very
unlikely, then you won’t have to order and pay for one
yourself, but will be able to order a transcript in the event you
need one. You will save the attendance charges. Keep this in
mind for any of the hearings or trials you will have in the
future.
What protection and benefits will you get from a court
reporter?
1. If you decide to appeal, you will have an accurate
record of the hearing and what was said. Otherwise,
you have no proof of what actually transpired.
2. If you do not have a transcript to support your
allegations, there is a chance that the court of appeals
will dismiss your case.
3. Courts of appeal do not make decisions based on the
“facts,” they make rulings on the “law” relative to the
“facts” and whether or not the judge interpreted them
correctly. A transcript will indicate what all the parties
said.
4. There is an intimidation factor for the judge and the
opposition. The opposition will not expect you to have
one. It will throw them off balance.
5. They know what they say will go on the record and
anything they say can be used against them.
Now that you have made all the preparations, gathered
your evidence, and studied the book “How To Represent
Yourself In Court” you are now ready for what will be the
hardest part for you….acting as your own lawyer in front of
the judge and opposition. This is where the rubber meets the
road!
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96
97
Court Hearing
hat happens in a court hearing? What is expected of
you and what can you do? How will you be treated?
Where can you find out how a trial is conducted
and what the judge is like?
If you don’t know what to expect, one of the simplest
things to do it to attend one and observe how a trial or hearing
is conducted. This will take away a lot of the uncertainty you
might have of the procedures used in court. The only
apprehensions you will have left are the ones that occur
normally from having to get up in front of the judge and
opposing lawyer.
The simplest way to do this is to call your judge’s
judicial assistant (JA) to find out the normal times the judge
holds hearings for family law matters and on which days. Most
all of these hearings are open to visitors and spectators and it
will definitely be worth your while to go to one as a spectator.
Some of the pointers you will receive there will be
invaluable. It will also give you some idea about your judge’s
demeanor and how he deals with the parties. You can orient
your defense accordingly.
W
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If you are thinking about not going to the contempt
hearing or appearing by phone, I would like to discourage you
from doing so unless you live in another state and that travel
would be very inconvenient and/or expensive. But remember,
by not attending the hearing, it could end up very inconvenient
and expensive for you too.
In the former situation, by not attending, it is a surefire
way to get a free trip to the jail. In the latter instance, it would
greatly weaken your position with the judge and reduce your
ability to gain credibility with the judge. It will only delay the
inevitable.
Since contempt hearings are evidentiary ones (where
evidence is presented) they don’t normally allow telephone
appearances but I have heard of where it has been done by
people out of the state. Being there in person gives you a better
chance to interact with the judge and the opposition.
Remember, you want to get the judge to like you and to
hopefully gain his confidence. This is hard to do over the
phone.
The thought and experience of facing a judge who has
the power to throw you in jail can be very intimidating. It
might even make you very nervous. This is natural. You might
not be able to overcome it, but you can deal with it.
Your mental attitude will have a lot to do with how you
handle things. You have to have confidence and find comfort
in the fact that you have armed yourself with the best tools for
your defense….your caselaw, your facts, your evidence and
your preparations.
Learn some relaxing techniques you can use prior to the
hearing like meditation, yoga-type breathing, or anything else
you know about calming yourself. Taking a couple of
tranquilizers works too.
Very important also is to bring some moral support
along in the form of friends or associates if possible. Not only
is it good for your mental attitude but they will provide two
benefits. First, they will provide a relaxing atmosphere in
giving you someone with whom to talk and; second, they will
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provide witnesses and spectators for the opposition and judge
to see.
It seems to upset the opposition to see witnesses
because I’ve had the opposing lawyer question me as to who
they were. If this happens to you, you could just answer with
something like “concerned citizens” then if the lawyer presses
any further, you can object to the judge saying that the trials
are open to the public and it is not any of the lawyer’s business
as to the identities of the spectators.
Any time I can cause concern in the opposition, it
makes me happy because it throws them off balance. As for the
judge and opposing lawyers, they usually are more careful in
what they say knowing there are strangers observing what is
going on.
Q Procedures In Court
Courts have a definite procedure they follow in
hearings and trials. The best way to learn about what goes on
and how it operates is to get the book suggested at the
beginning: “Represent Yourself In Court.” This will be a
valuable resource that you should definitely have and study
until you have grasped the contents.
At all times, you need to be respectful of the court.
There might be times when you might be inclined to use harsh
words to emphasize a point or against the opposition. Refrain
from doing so. Remember, the judge has the power to put you
away for a while, so it doesn’t pay to tick him off.
Normally, the courts give a certain degree of leeway to
a pro se in what they do and how they conduct themselves at a
court hearing. However, you need to be aware of the
procedures and try to follow them to the letter as close as
possible. Just like the rules of the road, the courts are governed
by the Fla. R. Civ. P. and the Fla. Fam. R. P. If you show
respect to the court and an attempt to follow the prescribed
procedures, they will recognize this and probably give you
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leeway. If there is a question about anything, just ask the judge
to clarify whatever it is you don’t understand, in a polite
manner.
You will find that no matter how much you prepare that
the opposition will come up with something that you didn’t
expect. Always expect the unexpected and then you won’t be
surprised. Remember, they have years of training in this and
have a lot of experience upon which to draw and use on you.
When this happens it is wise to be prepared with “objections”
you can use against the opposition.
The recommended book “Represent Yourself In
Court.” indicated above has a good section on the list of
different objections that proved quite helpful at my hearings.
Again, raising objections is something that will surprise the
opposition, as they won’t be expecting it from you. There are
definite rules in how to do this, which are explained in the
book.
When the other lawyer is making their opening
statement and later on giving their presentation of evidence, be
sure to take notes. You will need to know which items you
need to rebut or address when your time comes to speak.
It is bad form to interrupt the opposition during their
opening statement. The time to do it is after their opening
statement when they are presenting evidence and making
statements you know are inaccurate or inappropriate. You can
then “object.”
At the start of the proceedings, after the judge makes
his comments, the party that filed the motion for contempt will
make an opening statement to support their motion. Essentially
they will summarize what is in their motion.
Next, you will be allowed to make your opening
statement in which you will briefly summarize what you will
present to show why you shouldn’t be held in contempt. Your
statement should run approximately. 5 minutes. At the
beginning of your opening statement, be sure to ask the judge
to reserve some time like 5 to 10 minutes for rebuttal of the
opposition’s argument.
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I have found it very important to put in writing
everything I wanted to say in a script form. If you can do it in
an outline form, that is even better. Especially for the opening
and closing statement. Prepare your statement as if the judge
has never seen your filed documents. There is a good chance he
hasn’t done any more than scan them prior to the hearing. I
think this is why they have opening statements.
A good method of assembling your case and order of
presentation is to use a 3-ring notebook with tabbed dividers.
Place everything in there in the order that will follow the
court’s proceedings. Avoid loose papers in folders other than
caselaw handouts you might have for the judge as they have a
way of getting mixed up in the rush to find things on the table.
It would be wise to print out your statements in double-spaced
14 point typeface to make it easier to read while you are at the
speaker’s podium.
Another thing you might want to bring is a digital tape
recorder to record the event. Things will be going by at a fairly
rapid rate, there will be a lot of material covered, and you will
be preoccupied with your presentation and simultaneously
following the proceedings that you will be unaware of all that
is happening. The digital recording can be downloaded to your
computer and used to refresh your memory should you need
refer back to the court happenings or to go to appeal.
After you have written your speech, practice delivering
it aloud until you are able to say it with ease and not stumbling
too much. During the hearing, you will probably be nervous to
some extent and familiarity with delivering the speech will
make it easier for you.
When you speak in the courtroom, direct your full
attention on the judge and make eye contact as often as
possible. Be sure to use emphasis on important points. Don’t
use a monotone delivery. You want to keep the judge awake
and not let them bored. Forget anyone else is in the room.
Don’t be afraid to show them that you have a bit of “passion”
in your beliefs and your statements.
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In your opening statement, your goal is brevity with a
statement of the facts that support your motion. Tell the court
“what” you are going to prove either in support of your
evidence or where the other side is in error. Then “elaborate”
on the points you are going to prove with a basis of your proof,
and finally give them a “summary” of what you have just said
and indicate that it will give them reason to rule in your favor.
Try to use a simple format, which is easy for the judge
to follow. Number the points you are going to make so the
judge has some idea of where you are in your statement and
when you will end.
As a matter of strategy, you might want to consider
holding off presenting your financial affidavit and bank
statement until your closing statement. The reason for this is
that as previously indicated, the opposition has to show you
have the present ability to purge and they have to show where
the funds are coming from.
By waiting until after they have made their arguments
and presented their evidence in support of their motion (after
the opening argument,) you will find out what they know and
the facts that they have. If they don’t show that you have a
present ability to purge and where the funds are coming from
with specific and hard evidence of what and where, then you
have a good chance of check-mating them.
When your turn comes to present evidence, you can
indicated that the opposition has not provided any specific
evidence as required by statute and caselaw precedent to
support a contempt ruling and that you have a financial
affidavit and bank statement that you’d like to present to the
court at that time to show you have no ability to purge or funds
with which to do it. Then hand the opposition a copy and the
bailiff a copy for the judge. Then sit back and let them stew. A
great Perry Mason-type closing.
If the opposition asks for more documentation or
anything else, you can tell them they never requested it earlier
and it is too late to do so now.
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If, on the other hand, you had provided this information
with your motion to deny contempt, you would have provided
the opposition with lots of information and time to come back
on you requesting more discoveries. Personally, I favor the
subtle approach simply because it works and doesn’t alert the
opposition until it is too late for them to respond. It takes
advantage of negligence on the part of the other side.
If you would like a flanking approach in addition, don’t
forget the scenario described above using a last minute filing of
an “Appendix” to your motion to deny contempt.
At the hearing, when you are presenting your evidence
after the opening statement, and after the opposition presents
their evidence, you hand the opposition a copy and one to the
bailiff for the judge. You don’t really have to go over what is in
it other than to say what it is and that it will additionally
support your argument.
You might want to ask the judge if you need to admit
the Appendix into evidence or if the filing with the clerk will
be sufficient. The way to admit items into evidence is outlined
in the “Represent Yourself In Court” book.
The other side will probably complain but you can file
anything prior to the hearing. Since it is not a new motion but
only an appendix to a motion already on the agenda, you don’t
have to give the required notice of so many days prior to the
hearing on the motion. As long as you have a certificate of
service at the end of the appendix and that you personally
served it the date of the hearing it should suffice.
The effect of all this is to submit items which the
opposition will be unable to have a lot of time to counter at the
hearing. Since the judge can only hear the motions that were on
the notice of hearing, the opposition will be unable to file
anything in opposition to what you just presented in court.
With all this, there will be a good chance that the judge
will want additional time to go over the material before
rendering a verdict unless, of course, your case is extremely
weak or you plainly are in contempt.
In the event the judge doesn’t see things your way,
104
holds you in contempt, and has you incarcerated right from the
courtroom, you will find there is a third benefit to having a
friend attend the hearing with you. Your friend will be able to
drive your car home and let someone know what happened so
they can come to your rescue.
Also, if you think you have a weak case and there is the
possibility of being jailed, I would recommend bringing a plain
white or grey sweatshirt to the hearing with you and to have it
handy. It is my understanding that some of the jails are kept
very cold and if you don’t have one to wear, you will be very
uncomfortable.
Since there is also a chance that you might be
incarcerated, there are some things of which you need to be
aware and which will be covered in the next chapter.
105
Incarceration
W
hat can you do if the judge finds you in contempt
and decides you should be a guest of the county?
There is no way to be sure that the judge won’t
rule against you, hold you in contempt, and decide to
incarcerate you right then and there. If you think you will be
incarcerated, it would be a good idea to have your “plan B” in
place to handle it.
Plan B
In planning for this eventuality, it would be a good idea
to read the Pro Se Self-help Guidebook “Jail: An Inmates
Survival Guide” in which a person who was sent to jail for
contempt of court in Florida tells of his experiences in detail
and gives you an idea of what to expect when it happens to
you. You can find it at: www.panama-publishing.com.
Some preparations you need to consider in the event
you will be away for a while are listed below. Either you or
106
someone you know can do it for you. If you live with someone,
then it should be no problem but if you live by yourself, then
there is more you need to do in preparation.
1. Bring someone with you to the hearing in order to bring
your vehicle back home.
2. Bring a white or grey, plain sweatshirt that you can put
on quick if the bailiff takes you into custody. Some of
the jail cells are kept uncomfortably cold and the outfits
they give you won’t do much to keep you warm.
3. Locate a source of purge money you can borrow or
obtain in some other manner.
4. Have a reliable person to be able to help you on the
outside while you are inside and maybe even visit you
periodically.
5. At your home, turn off whatever needs to be shut down
for your absence like water heater, A/C, reduce food in
the refrigerator, etc. Arrange for someone to pick up
your mail, notify your workplace, put a hold on your
newspaper deliveries and anything else you can think
of.
6. Be prepared for a ton of back emails depending on how
long you are away.
You get the idea now, so work up your own Plan B
checklist and have it ready. Being incarcerated on an
unexpected basis can turn out to be very inconvenient and you
will be surprised how difficult it is to get anything done when
your only form of communication is a payphone or with
someone visiting you.
107
Habeas Corpus
If the judge ignored or made an error in the
interpretation of the law, you will be able to file a Writ of
Habeas Corpus with a Florida State District Court of Appeals
in an attempt to possibly get you released from jail. Preparing a
writ can be a bit involved if you don’t know what you are
doing.
The following definition is from the LectLaw.com
website. at www.lectlaw.com/def/h001.htm
“Habeas Corpus: Lat. "you have the body" Prisoners
often seek release by filing a petition for a writ of
habeas corpus. A writ of habeas corpus is a judicial
mandate to a prison official ordering that an inmate be
brought to the court so it can be determined whether or
not that person is imprisoned lawfully and whether or
not he should be released from custody.
A habeas corpus petition is a petition filed with a court
by a person who objects to his or another person’s
detention or imprisonment. The petition must show that
the court ordering the detention or imprisonment made
a legal or factual error. Habeas corpus petitions are
usually filed by persons serving prison sentences. In
family law, a parent who has been denied custody of his
child by a trial court may file a habeas corpus petition.
Also, a party may file a habeas corpus petition if a
judge declares him or her in contempt of court and
jails or threatens to jail him or her.”
From Chapter 79 of the Florida Statutes that follow,
you can pretty well figure out the procedure. In my own
opinion, if it were a circuit court judge that found me in
contempt in the first place, I would want to file the writ in a
higher court like the District Court of Appeals where it would
be reviewed by a different judge
108
79.01 Application and writ.--When any
person detained in custody, whether charged with a
criminal offense or not, applies to the Supreme Court or
any justice thereof, or to any district court of appeal or
any judge thereof or to any circuit judge for a writ of
habeas corpus and shows by affidavit or evidence
probable cause to believe that he or she is detained
without lawful authority, the court, justice, or judge to
whom such application is made shall grant the writ
forthwith, against the person in whose custody the
applicant is detained and returnable immediately before
any of the courts, justices, or judges as the writ directs.
79.03 Service of writ.--When issued, the writ
shall be served by the sheriff of the county in which the
petitioner is alleged to be detained on the officer or
other person against whom it is issued, or in his or her
absence from the place where the prisoner is confined,
on the person having the immediate custody of the
prisoner. When the sheriff of the county is the person
holding the party detained, a delivery to or receipt of
the writ by the sheriff is sufficient service.
79.04 Return to writ.-(1) The person on whom the writ is served shall bring
the body of the prisoner, or cause it to be brought,
before the court, justice or judge before whom the writ
is made returnable without delay and at the same time
certify to the cause of the detention.
(2) When the writ is issued, the court shall set an early
return date, at which time the formal return of the
defendant shall be made. In the absence of a motion to
quash or a motion for discharge notwithstanding the
return, issue is joined when the return is filed and the
action shall be ready for final disposition.
109
79.05 Compelling return and production of
body.
(1) CIVIL LIABILITY.--Any person failing to return
to the writ served on him or her with the cause of the
prisoner's detention, or to bring the body of the prisoner
before the court, justice, or judge, according to the
command of the writ for 3 days after the service shall
forfeit and pay to the prisoner the sum of $300.
(2) BY PROCEEDINGS BY THE COURT.--A justice
or judge in vacation may enforce obedience to any writ
of habeas corpus and in cases pending before the
Supreme Court, or any of the justices thereof, writs for
the enforcement of obedience may be directed to the
sheriff or other officer.
79.06 Effect of the return.-(1) GENERALLY.--The return made to the writ may
be amended, and is not conclusive as to the facts stated
therein, but the court, justice or judge before whom the
return is made may examine into the cause of the
imprisonment or detention, receive evidence in
contradiction of the return, and determine it as the truth
of the case requires.
(2) IN CASES OF CONTEMPT.--On the return of the
writ when the cause of detention appears to be a
contempt, plainly and specifically charged in the
commitment by some court officer or body having
authority to commit for the contempt so charged and for
the time stated, the court, justice or judge before whom
the writ is returnable shall remand the prisoner
forthwith if the time for detention for contempt has not
expired.
79.08 Hearing and judgment.--The court,
justice, or judge before whom the prisoner is brought
shall inquire without delay into the cause of the
prisoner's imprisonment, and shall either discharge the
110
prisoner, admit him or her to bail or remand him or her
to custody, as the law and the evidence require; and
shall either award against the prisoner the charges of his
or her transportation, not exceeding 15 cents per mile
and the costs of the proceedings, or shall award the
costs in the prisoner's favor, or shall award no costs or
charges against either party, as is right. The clerk of the
court in which such action is pending shall issue
execution for the costs and charges awarded.
79.09 Filing of papers.--Before a circuit judge
the petition and the papers shall be filed with the clerk
of the circuit court of the county in which the prisoner
is detained. Before the other courts, justices or judges,
the papers shall be filed with the clerk of the court on
which the justice or judge sits.
79.10 Effect of judgment.--The judgment is
conclusive until reversed and no person remanded by
the judgment while it continues in force shall be at
liberty to obtain another habeas corpus for the same
cause or by any other proceeding bring the same matter
again in question except by an appeal or by action of
false imprisonment; nor shall any person who is
discharged from confinement by the judgment be
afterward confined or imprisoned for the same cause
except by order of a court of competent jurisdiction.
I have never personally utilized a writ of habeas corpus
but in researching it, I found it is one of the options other than
paying a purge with which to get out of jail and you should
know about it. For safety sake, it would be a good idea to have
a lawyer lined up who can help you with this as you have a lot
more riding on it--being freed from jail.
One option you might want to consider is to find a
lawyer who will work with you on an hourly basis without a
retainer in order to put a Writ together in the event you need
one. It will be a long shot to find one, but there is always a
possibility there will be one who is looking for additional
business.
Writs of habeas corpus are delineated in the Florida
Statutes as follows:
Fla. R. Civ. P. RULE 1.630. EXTRAORDINARY
REMEDIES is the governing statute:
a) Applicability. This rule applies to actions for
the issuance of writs of mandamus, prohibition,
quo warranto, certiorari, and habeas corpus.
(b) Initial Pleading. The initial pleading shall
be a complaint. It shall contain:
(1) the facts on which the plaintiff relies
for relief;
(2) a request for the relief sought; and
(3) if desired, argument in support of the
petition with citations of authority.
The caption shall show the action filed in the
name of the plaintiff in all cases and not on the
relation of the state. When the complaint seeks a
writ directed to a lower court or to a
governmental or administrative agency, a copy
of as much of the record as is necessary to
support the plaintiff’s complaint shall be
attached.
(c) Time. A complaint shall be filed within the
time provided by law, except that a complaint
for common law certiorari shall be filed within
30 days of rendition of the matter sought to be
reviewed.
111
112
(d) Process. If the complaint shows a prima
facie case for relief, the court shall issue:
(1) a summons in certiorari;
(2) an order nisi in prohibition;
(3) an alternative writ in mandamus that
may incorporate the complaint by reference
only;
(4) a writ of quo warranto; or
(5) a writ of habeas corpus.
The writ shall be served in the manner
prescribed by law, except the summons in
certiorari shall be served as provided in rule
1.080(b).
(e) Response. Defendant shall respond to the
writ as provided in rule 1.140, but the answer in
quo warranto shall show better title to the office
when the writ seeks an adjudication of the right
to an office held by the defendant.
113
Arrest Order Enforcement In Other States
I
f you didn’t attend the contempt hearing, you will most
likely be held in contempt and a writ of bodily attachment
issued for your arrest in Florida. The important thing to
note here is that the arrest order is only good for the state of
Florida and cannot be enforced in any other state.
The controlling caselaw here is Sanders v. Laird, 865
So.2d 649 (Fla.App. 2 Dist. 2004) which says:
“Therefore, section 61.11(2) should be
construed to limit the authority of the circuit
courts to issue writs of bodily attachment to
within Florida so as not to diminish the statute's
procedural safeguards against an unwarranted
arrest.” ….
….“Further, the circuit court is prohibited from
issuing or enforcing any writ of bodily
attachment providing for the arrest of Sanders
outside the State of Florida.”
114
If you are residing in another state and there is an arrest
order out on you, your ex-spouse will need to find and retain a
lawyer in the state where you are residing and “domesticate”
the contempt and arrest order there. This will cause the exspouse to incur additional cost and effort and they have to
decide whether or not it is worth it.
Keep in mind that this domestication of orders only
applies to alimony and not child support. Child support is a
completely different ball game. With child support owing,
there are no restrictions on the state of Florida from coming
after you in any other state and even internationally under the
Uniform Interstate Family Support Act. Read Chapter 88 of
the Florida Statutes for more details.
For those of you who are residents of other states, it is
important that you find out if your state has a similar case
precedent like Sanders v. Laird that applies to your state. You
want to make sure that if you decide to go to another state that
an arrest order from your home state can’t be enforced in that
state.
115
Request For Jury Trial
A
re you entitled for a jury trial in a civil family law
case? When are you entitled to request one?
Under Fla. R. Civ. P. 1.430 you will see the following
rule:
RULE 1.430. DEMAND FOR JURY TRIAL;
WAIVER
(a) Right Preserved. The right of trial by jury
as declared by the Constitution or by statute
shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by
jury of any issue triable of right by a jury by
serving upon the other party a demand therefore
in writing at any time after commencement of
the action and not later than 10 days after the
service of the last pleading directed to such
issue. The demand may be indorsed upon a
116
pleading of the party.
(c) Specification of Issues. In the demand a
party may specify the issues that the party
wishes so tried; otherwise, the party is deemed
to demand trial by jury for all issues so triable.
If a party has demanded trial by jury for only
some of the issues, any other party may serve a
demand for trial by jury of any other or all of
the issues triable by jury 10 days after service of
the demand or such lesser time as the court may
order.
(d) Waiver. A party who fails to serve a
demand as required by this rule waives trial by
jury. If waived, a jury trial may not be granted
without the consent of the parties, but the court
may allow an amendment in the proceedings to
demand a trial by jury or order a trial by jury on
its own motion. A demand for trial by jury may
not be withdrawn without the consent of the
parties.
This option is rarely if ever used because, most likely,
few if anyone know how to use it. Even I was unaware of its
usefulness until someone brought it to my attention after all my
proceedings had ceased.
It would seem that the courts prefer not to have jury
trials as it would greatly increase their workload and clog up
the court system. They like to have only judges make all the
decisions in the cases in order to speed things through.
Family law cases are tried in courts of equity. Jury trials
are allowed only for situations that arise in court that are nonequitable such as fraud and misrepresentations. The rule that
has evolved is that even where a complaint (or petition) lies
solely in equity, the filing of a compulsory counterclaim
seeking remedies at law entitles the counterclaimant to a jury
117
trial of the legal issues, if one is asked for. See Muir v. Muir,
232 So.2d 225 (Fla.App. 1 Dist. 1970)
The material in this chapter will probably not be of
much use to you in a typical case, but it is good to know what
tools are available in the event you might be faced with this
situation.
Now that you have seen what is involved, I would like
to leave you with a few parting thoughts in the next section.
118
119
In Closing
W
hat you have just read should convince you that
you are now able to take control of your fate and
that you will be able to hold your own when facing
contempt of court.
At the start, we are all hesitant to fight the system, as
there seems to be overwhelming odds against us by fighting the
enemy on their home grounds. But once you get into the battle,
you will find that it was only your lack of knowledge that gave
you that hesitation.
The only fear you might have is that of the unknown
and that you are facing overwhelming odds in an abyss called
the family law system. Do not let this deter you but take
courage from the fact that when people like yourself undertake
to fight back against seemingly overwhelming odds, they stand
the chance of reaping the rewards.
It was the purpose of this guidebook to change those
odds and to mitigate your fears of the unknown. Unknowns,
once they are brought into the light of understanding can no
longer be fearful to you.
120
Simpler put, if you don’t challenge the opposition, you
have a 100% chance of failure and possibly going to jail. If you
choose to fight back, you’ve just increased your odds to 50%.
That’s good odds in anyone’s book considering the possible
outcome stands to be in your favor if you truly have no present
ability to pay. At least now, you know what can be done to
present your case to a judge to get a chance at that favorable
ruling.
And what have you got to loose in the process? Nothing
but some time. What have you got to gain in the process? A
better understanding of the legal system and the processes that,
up to now, you have been ignorant of and which have been
used against you.
If you look at this type of proceeding you will see that
you don’t have many chances to make a first impression with
the judge. With the information you have just digested, you
have a better idea of what you can do to defend yourself. Don’t
think that you won’t have to prepare and can throw yourself on
the mercy of the court. If you do, it will be the fastest way to
being given an unwanted vacation courtesy of the county.
If you are unable to afford a lawyer to help you, you
will better understand that you have no other choice but to do
things yourself. Hopefully, this book has shed some light on
what options are available to you and that the author’s
experiences will prove helpful to you.
By being self-represented and going pro se you are
armed with a very potent weapon….that of not having to incur
hefty legal fees for everything you do. The only thing you have
lacked up to now has been the knowledge contained in this
book. Good luck in your efforts and “may the force be with
you!”
Fear not that you will make mistakes and remember
these two quotes by famous people:
"The probability that we may fail in the struggle
ought not to deter us from the support of a cause
we believe to be just." --Abraham Lincoln
"Many of life's failures are people who did not
realize how close they were to success when
they gave up." --Thomas A. Edison
121
122
Appendices
Referenced Links:
•
•
•
•
•
•
•
•
•
Abolish Alimony.org
www.abolish-alimony.org
Alimony Victims Forum group
http://forum.alimonyvictims.com/
Alliance For Freedom From Alimony, Inc.
www.alimonyreform.org
Alliance For Freedom From Alimony, Inc. Yahoo
Forum group
http://groups.yahoo.com/group/cflap_org/
Citizens For Liberty And Privacy
www.cflap.org
Consumer Credit Protection Act, 15 U.S.C. s. 1673
www.dol.gov/compliance/guide/garnish.htm
Defense Finance and Accounting Service (DFAS)
www.dfas.mil/militarypay/garnishment.html
Florida Bar Association
www.floridabar.org
Publications > Directory & Links > Florida Rules of
Procedure.
Florida Courts Self-help, state forms
www.flcourts.org/gen_public/family/forms_rules/index.shtml
•
•
•
•
•
Florida State Courts
www.flcourts.org/
LectLaw.com
www.lectlaw.com/def/h001.htm
Local court rules (if there are any)
www.flcourts.org/index.shtml
Loislaw
www.loislaw.com
Panama Publishing, Inc.:
•
Westlaw
www.westlaw.com
Resources:
Florida Legal Services: Non-profit group offering
information on legal services for low and moderate income
Floridians.
http://www.floridalawhelp.org/FL/index.cfm
LexisONE – free legal caselaw searches
www.lexisone.com
Forum Resources
•
•
Alliance for Freedom From Alimony, Inc.
http://groups.yahoo.com/group/cflap_org/
Alimony Reform 2ND Wives Club
http://groups.yahoo.com/group/alimonyreform2ndwivesclub/
•
•
Alimony Victims Association
http://forum.alimonyvictims.com/index.php
Alimony Central Org. – List of forums
www.alimonycentral.org/alimony-divorce-forums.htm
123
124
Sample Documents
Note: Copies of all these samples are available for
downloading at www.panama-publishing.com
Proposed Court Order
Page1 of 1
Notice of Hearing
Page 1 of 2
125
126
Notice of Hearing
Page 1 of 2
Motion to Appear by Phone
Page 1 of 2
127
128
Motion to Appear by Phone
Page 1 of 2
Notice of Hearing and Appearance by Phone
Page 1 of 2
129
130
Notice of Hearing and Appearance by Phone
Page 2 of 2
Motion to Compel
Page 1 of 2
131
132
Motion to Compel
Page 2 of 2
Motion to Deny
Page 1 of 2
133
134
Motion to Deny
Page 1 of 2
Motion to Object
Page 1 of 2
135
136
Motion to Object
Page 1 of 2
Motion to Strike
Page 1 of 3
137
138
Motion to Strike
Page 2 of 3
Motion to Strike
Page 3 of 3
139
140
Relevant Caselaw
Note: you can plug these cases in Google and it usually will
bring up the reference for you to read.
THE BIG SIX: (on website)
Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)
Excellent explanation of proper procedure to use civil
contempt and in support enforcement.
Gregory v. Rice, 727 So.2d 251 (Fla. 1999)
Procedure for civil contempt proceeding involving
Department of Revenue and Child Support Enforcement
Hearing Officer. (Recommended orders must contain detailed
findings of fact to support the hearing officer's
recommendation.)
Johnson v. Bednar, 573 So.2d 822 (Fla. 1991)
Excellent overview of civil contempt including
explanation of different types of civil contempt fines but you
must also read International Union, United Mine Workers v.
BagweIl, 512 U.S. 821, 114 S. Ct. 2552, 129 L.Ed.2d 642
(1994), which effectively overruled the purge provision
holding in Johnson v. Bednar and which the supreme court
acknowledges in Gregory v. Rice, 727 So.2d 251 (Fla. 1999).
nd
Kelley v. Rice, 800 So.2d 247 (Fla. 2 DCA 2001)
Requirement of due process of law in indirect criminal
contempt.
Parisi v. Broward County, 769 So.2d 359 (Fla. 2000)
Civil contempt sanctions; review of contempt power.
Pugliese v. Pugliese. 347 So.2d 422 (Fla. 1977)
Excellent overview of the four types of contempt and the
basic rules.
141
**********
Here are some other excerpts from various caselaw that
can be used in your oral arguments in front of the court or even
in your SPMA and other documents. These cases can be found
in their entirety on the www.panama-publishing.com website.
It will be good for you to understand the concepts put forth in
these decisions and to apply them in your presentation to
justify your arguments.
Freilich v. Freilich, 897 So.2d 537 (Fla.App. 5 Dist. 2005)
“Other decisions, including decisions from this court, simply
apply the often repeated general rule that "[a] court may impute
income if a party is earning less than he could, based on a
showing that he has the capability of earning more by the use
of his best efforts." Alpert v. Alpert, 886 So.2d 999, 1001 (Fla.
2d DCA 2004) (quoting Ritter v. Ritter, 690 So.2d 1372, 1374
(Fla. 2d DCA 1997)); see Andrews v. Andrews, 867 So.2d 476
(Fla. 5th DCA 2004); Solomon v. Solomon, 861 So.2d 1218
(Fla. 2d DCA 2003); Bronson v. Bronson, 793 So.2d 1109,
1111 (Fla. 4th DCA 2001); Davis v. Davis, 691 So.2d 626 (Fla.
5th DCA 1997) ("A court, however, may impute income upon
a showing that there is a capability to earn more by the use of
more diligent efforts."); Kovar v. Kovar, 648 So.2d 177, 178
(Fla. 4th DCA 1994) ("[W]hen a husband obligated to pay
support voluntarily reduces his income, the trial court has
discretion to impute to him the income he is capable of
earning."). Hence, the lack of a specific legislative directive
similar to that found in section 61.30(2)(b) has not proved to be
an impediment to imputation of income for purposes of
awarding alimony.
The courts may also impute income to a spouse for
purposes of awarding attorney's fees. See Smith; Arouza v.
Arouza, 670 So.2d 69 (Fla. 3d DCA 1996); see also Wilkinson
v. Wilkinson, 714 So.2d 524 (Fla. 5th DCA 1998).”
142
Muir v. Muir, 232 So.2d 225 (Fla.App. 1 Dist. 1970)
Mr. Justice Terrell, in his dissent in Neering v. State,[fn5]
set forth guidelines which are most helpful in cases such as the
instant one when he stated:
"The imposition of a judgment for contempt is one of the
most delicate duties a court is called on to perform. It is not
fixed by statute but is controlled by mercy and discretion and
the facts of the case. It should be corrective, not punitive, and it
should be made clear that it is not imposed for committing a
crime but for interfering with the essential and orderly
processes of the law."
Ordinarily a contemner is entitled to a jury trial if the facts
are substantially disputed.[fn6] The record in the instant case
reflects considerable dispute as to the facts, and a complete
absence of competent testimony to sustain the New Jersey
lawyer's observation at the outset that "patent perjury" was
indulged in by plaintiff.
**********
Olsen v. Olsen, 98 Idaho 10 (1976)
Read Justice Shepard's dissent starting on page 3 that
refers to alimony as involuntary servitude and gives the
rationale for alimony reform.
**********
Vega v. Swait, 4D07-932 (Fla.App. 4 Dist. 8-1-2007)
“We have previously said:
Unless there is some showing on the part of the wife that the
husband terminated or reduced his employment in order to
143
keep from paying alimony and that he was relying upon his
present wife for his living expenses in completion of the
scheme, we can see no possibility of relevance concerning
the present spouse's income.”
**********
Frivolous Lawsuits Defined:
Yakavonis V. Dolphin Petroleum, Inc., 4D05-3653 (Fla. App.
4 Dist. 2006) it states:
”We recognize that to some extent, the
definition of "frivolous" is incapable of precise
determination. Nevertheless, a review of Florida
case law reveals that there are established
guidelines for determining when an action is
frivolous. These include where a case is found:
a. to be completely without merit in
law and cannot be supported by a
reasonable argument for an
extension, modification or reversal
of existing law;
b. to be contradicted by overwhelming
evidence;
c. as having been undertaken primarily
to delay or prolong the resolution of
the litigation, or to harass or
maliciously injure another; or as
asserting material factual statements
that are false.”
See the support website for additional case cites.
144
Applicable Rules of Procedure
Note: The rules below are just a partial compilation of
the important ones that affect your case. Be sure to download
the full rules and read them in further detail to make sure you
don’t overlook anything.
Fla. R. Civ. P. Rule 1.280 (b)(1) GENERAL PROVISIONS
GOVERNING DISCOVERY:
(1) In General. Parties may obtain discovery regarding any
matter, not privileged, that is relevant to the subject matter of
the pending action, whether it relates to the claim or defense of
the party seeking discovery or the claim or defense of any other
party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other
tangible things and the identity and location of persons having
knowledge of any discoverable matter. It is not ground for
objection that the information sought will be inadmissible at
the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.
**********
Fla. Fam. L. R. P. RULE 12.285. MANDATORY
DISCLOSURE:
(a) Application.
(1) Scope. This rule shall apply to all proceedings within the
scope of these rules except proceedings involving
adoption, simplified dissolution, enforcement, contempt,
injunctions for domestic, repeat, dating, or sexual violence,
and uncontested dissolutions when the respondent is served by
publication and does not file an answer. Additionally,
no financial affidavit or other documents shall be required
under this rule from a party seeking attorneys’ fees, suit
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money, or costs, if the basis for the request is solely under
section 57.105, Florida Statutes, or any successor statute.
Except for the provisions as to financial affidavits and child
support guidelines worksheets, any portion of this rule
may be modified by order of the court or agreement of the
parties.
(2) Original and Duplicate Copies. Unless otherwise agreed
by the parties or ordered by the court, copies of documents
required under this rule may be produced in lieu of originals.
Originals, when available, shall be produced for inspection
upon request. Parties shall not be required to serve duplicates
of documents previously served.
(b) Time for Production of Documents.
(1) Temporary Financial Hearings. Any document required
under this rule in any temporary financial relief proceeding
shall be served on the other party for inspection and copying as
follows:
(A) The party seeking relief shall serve the required documents
on the other party with the notice of temporary
financial hearing, unless the documents have been served under
subdivision (b)(2) of this rule.
(B) The responding party shall serve the required documents
on the party seeking relief on or before 5:00 p.m., 2 business
days before the day of the temporary financial hearing if served
by delivery or 7 days before the day of the temporary financial
hearing if served by mail, unless the documents have been
received previously by the party seeking relief under
subdivision (b)(2) of this rule. A responding party shall be
given no less than 12 days to serve the documents required
under this rule, unless otherwise ordered by the court. If the 45day period for exchange of documents provided for in
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subdivision (b)(2) of this rule will occur before the expiration
of the 12 days, the provisions of subdivision (b)(2) control.
(2) Initial and Supplemental Proceedings. Any document
required under this rule for any initial or supplemental
proceeding shall be served on the other party for inspection and
copying within 45 days of service of the initial pleading on the
respondent.
(c) Disclosure Requirements for Temporary Financial
Relief. In any proceeding for temporary financial relief
heard within 45 days of the service of the initial pleading or
within any extension of the time for complying with mandatory
disclosure granted by the court or agreed to by the parties, the
following documents shall be served on the other party:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if the party’s
gross annual income is less than $50,000, or Florida Family
Law Rules of Procedure Form 12.902(c) if the party’s gross
annual income is equal to or more than $50,000. This
requirement cannot be waived by the parties. The affidavit
must also be filed with the court.
(2) All federal and state income tax returns, gift tax returns,
and intangible personal property tax returns filed by the party
or on the party’s behalf for the past year. A party may file a
transcript of the tax return as provided by Internal Revenue
Service Form 4506-T in lieu of his or her individual federal
income tax return for purposes of a temporary hearing.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the
income tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3
months prior to service of the financial affidavit.
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(d) Parties’ Disclosure Requirements for Initial or
Supplemental Proceedings. A party shall serve the following
documents in any proceeding for an initial or supplemental
request for permanent financial relief, including, but not
limited to, a request for child support, alimony, equitable
distribution of assets or debts, or attorneys’ fees, suit money,
or costs:
(1) A financial affidavit in substantial conformity with Florida
Family Law Rules of Procedure Form 12.902(b) if
the party’s gross annual income is less than $50,000, or Florida
Family Law Rules of Procedure Form 12.902(c) if the
party’s gross annual income is equal to or more than $50,000,
which requirement cannot be waived by the parties. The
financial affidavits must also be filed with the court. A party
may request, by using the Standard Family Law
Interrogatories, or the court on its own motion may order, a
party whose gross annual income is less than $50,000 to
complete Florida Family Law Rules of Procedure Form
12.902(c).
(2) All federal and state income tax returns, gift tax returns,
and intangible personal property tax returns filed by the party
or on the party’s behalf for the past 3 years.
(3) IRS forms W-2, 1099, and K-1 for the past year, if the
income tax return for that year has not been prepared.
(4) Pay stubs or other evidence of earned income for the 3
months prior to service of the financial affidavit.
(5) A statement by the producing party identifying the amount
and source of all income received from any source during the 3
months preceding the service of the financial affidavit required
by this rule if not reflected on the pay stubs produced.
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(6) All loan applications and financial statements prepared or
used within the 12 months preceding service of that party’s
financial affidavit required by this rule, whether for the purpose
of obtaining or attempting to obtain credit or for any other
purpose.
(7) All deeds within the last 3 years, all promissory notes
within the last 12 months, and all present leases, in which the
party owns or owned an interest, whether held in the party’s
name individually, in the party’s name jointly with any other
person or entity, in the party’s name as trustee or guardian for
any other person, or in someone else’s name on the party’s
behalf.
(8) All periodic statements from the last 3 months for all
checking accounts, and from the last 12 months for all other
accounts (for example, savings accounts, money market funds,
certificates of deposit, etc.), regardless of whether or not the
account has been closed, including those held in the party’s
name individually, in the party’s name jointly with any other
person or entity, in the party’s name as trustee or guardian for
any other person, or in someone else’s name on the party’s
behalf.
(9) All brokerage account statements in which either party to
this action held within the last 12 months or holds an interest
including those held in the party’s name individually, in the
party’s name jointly with any person or entity, in the party’s
name as trustee or guardian for any other person, or in someone
else’s name on the party’s behalf.
(10) The most recent statement for any profit sharing,
retirement, deferred compensation, or pension plan (for
example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar
account) in which the party is a participant or alternate
payee and the summary plan description for any retirement,
profit sharing, or pension plan in which the party is a
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participant or an alternate payee. (The summary plan
description must be furnished to the party on request by the
plan administrator as required by 29 U.S.C. § 1024(b)(4).)
(11) The declarations page, the last periodic statement, and the
certificate for all life insurance policies insuring the party’s life
or the life of the party’s spouse, whether group insurance or
otherwise, and all current health and dental insurance cards
covering either of the parties and/or their dependent children.
(12) Corporate, partnership, and trust tax returns for the last 3
tax years if the party has an ownership or interest in a
corporation, partnership, or trust greater than or equal to 30%.
(13) All promissory notes for the last 12 months, all credit card
and charge account statements and other records showing the
party’s indebtedness as of the date of the filing of this action
and for the last 3 months, and all present lease agreements,
whether owed in the party’s name individually, in the party’s
name jointly with any other person or entity, in the party’s
name as trustee or guardian for any other person, or in someone
else’s name on the party’s behalf.
(14) All written premarital or marital agreements entered into
at any time between the parties to this marriage, whether before
or during the marriage. Additionally, in any modification
proceeding, each party shall serve on the opposing party all
written agreements entered into between them at any time since
the order to be modified was entered.
(15) All documents and tangible evidence supporting the
producing party’s claim of special equity or nonmarital
status of an asset or debt for the time period from the date of
acquisition of the asset or debt to the date of production
or from the date of marriage, if based on premarital acquisition.
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(16) Any court orders directing a party to pay or receive
spousal or child support.
(e) Duty to Supplement Disclosure; Amended Financial
Affidavit.
(1) Parties have a continuing duty to supplement documents
described in this rule, including financial affidavits, whenever a
material change in their financial status occurs.
(2) If an amended financial affidavit or an amendment to a
financial affidavit is filed, the amending party shall also serve
any subsequently discovered or acquired documents supporting
the amendments to the financial affidavit.
(f) Sanctions. Any document to be produced under this rule
that is served on the opposing party fewer than 24 hours before
a nonfinal hearing or in violation of the court’s pretrial order
shall not be admissible in evidence at that hearing unless the
court finds good cause for the delay. In addition, the court may
impose other sanctions authorized by rule 12.380 as may be
equitable under the circumstances. The court may also impose
sanctions upon the offending lawyer in lieu of imposing
sanctions on a party.
(g) Extensions of Time for Complying with Mandatory
Disclosure. By agreement of the parties, the time for
complying with mandatory disclosure may be extended. Either
party may also file, at least 5 days before the due date, a
motion to enlarge the time for complying with mandatory
disclosure. The court shall grant the request for good cause
shown.
(h) Objections to Mandatory Automatic Disclosure.
Objections to the mandatory automatic disclosure required by
this rule shall be served in writing at least 5 days prior to the
due date for the disclosure or the objections shall be deemed
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waived. The filing of a timely objection, with a notice of
hearing on the objection, automatically stays mandatory
disclosure for those matters within the scope of the objection.
For good cause shown, the court may extend the time for the
filing of an objection or permit the filing of an otherwise
untimely objection. The court shall impose sanctions for the
filing of meritless or frivolous objections.
(i) Certificate of Compliance. All parties subject to automatic
mandatory disclosure shall file with the court a certificate of
compliance, Florida Family Law Rules of Procedure Form
12.932, identifying with particularity the documents which
have been delivered and certifying the date of service of the
financial affidavit and documents by that party. The party shall
swear or affirm under oath that the disclosure is complete,
accurate, and in compliance with this rule, unless the party
indicates otherwise, with specificity, in the certificate of
compliance. Except for the financial affidavit and child support
guidelines worksheet, no documents produced under this rule
shall be filed in the court file without a court order.
**********
RULE 1.340. INTERROGATORIES TO PARTIES
(a) Procedure for Use. Without leave of court, any party may
serve upon any other party written interrogatories
to be answered (1) by the party to whom the interrogatories are
directed, or (2) if that party is a public or private
corporation or partnership or association or governmental
agency, by any officer or agent, who shall furnish the
information available to that party. Interrogatories may be
served on the plaintiff after commencement of the action
and on any other party with or after service of the process and
initial pleading upon that party. The interrogatories
shall not exceed 30, including all subparts, unless the court
permits a larger number on motion and notice and for
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good cause. If the supreme court has approved a form of
interrogatories for the type of action, the initial
interrogatories shall be in the form approved by the court.
Other interrogatories may be added to the approved forms
without leave of court, so long as the total of approved and
additional interrogatories does not exceed 30. Each
interrogatory shall be answered separately and fully in writing
under oath unless it is objected to, in which event the
grounds for objection shall be stated and signed by the attorney
making it. The party to whom the interrogatories are directed
shall serve the answers and any objections within 30 days after
the service of the interrogatories, except that a defendant may
serve answers or objections within 45 days after service of the
process and initial pleading upon that defendant. The court may
allow a shorter or longer time. The party submitting the
interrogatories may move for an order under rule 1.380(a) on
any objection to or other failure to answer an interrogatory.
(b) Scope; Use at Trial. Interrogatories may relate to any
matters that can be inquired into under rule 1.280(b), and the
answers may be used to the extent permitted by the rules of
evidence except as otherwise provided in this subdivision. An
interrogatory otherwise proper is not objectionable merely
because an answer to the interrogatory involves an opinion or
contention that relates to fact or calls for a conclusion or asks
for information not within the personal knowledge of the party.
A party shall respond to such an interrogatory by giving the
information the party has and the source on which the
information is based. Such a qualified answer may not be used
as direct evidence for or impeachment against the party giving
the answer unless the court finds it otherwise admissible under
the rules of evidence. If a party introduces an answer to an
interrogatory, any other party may require that party to
introduce any other interrogatory and answer that in fairness
ought to be considered with it.
*********
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RULE 1.380. FAILURE TO MAKE DISCOVERY;
SANCTIONS
(a) Motion for Order Compelling Discovery. Upon
reasonable notice to other parties and all persons affected, a
party may apply for an order compelling discovery as follows:
(1) Appropriate Court. An application for an order to a party
may be made to the court in which the action is
pending or in accordance with rule 1.310(d). An application for
an order to a deponent who is not a party shall be
made to the circuit court where the deposition is being taken.
(2) Motion. If a deponent fails to answer a question
propounded or submitted under rule 1.310 or 1.320, or a
corporation or other entity fails to make a designation under
rule 1.310(b)(6) or 1.320(a), or a party fails to answer an
interrogatory submitted under rule 1.340, or if a party in
response to a request for inspection submitted under rule
1.350 fails to respond that inspection will be permitted as
requested or fails to permit inspection as requested, or if a
party in response to a request for examination of a person
submitted under rule 1.360(a) objects to the examination,
fails to respond that the examination will be permitted as
requested, or fails to submit to or to produce a person in that
party’s custody or legal control for examination, the
discovering party may move for an order compelling an
answer, or a designation or an order compelling inspection, or
an order compelling an examination in accordance with the
request. The motion must include a certification that the
movant, in good faith, has conferred or attempted to confer
with the person or party failing to make the discovery in an
effort to secure the information or material without court
action. When taking a deposition on oral examination, the
proponent of the question may complete or adjourn the
examination before applying for an order. If the court denies
the motion in whole or in part, it may make such protective
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order as it would have been empowered to make on a motion
made pursuant to rule 1.280(c).
(3) Evasive or Incomplete Answer. For purposes of this
subdivision an evasive or incomplete answer shall be
treated as a failure to answer.
(4) Award of Expenses of Motion. If the motion is granted
and after opportunity for hearing, the court shall require the
party or deponent whose conduct necessitated the motion or the
party or counsel advising the conduct to pay to the moving
party the reasonable expenses incurred in obtaining the order
that may include attorneys’ fees, unless the court finds that the
movant failed to certify in the motion that a good faith effort
was made to obtain the discovery without court action, that the
opposition to the motion was justified, or that other
circumstances make an award of expenses unjust. If the motion
is denied and after opportunity for hearing, the court shall
require the moving party to pay to the party or deponent who
opposed the motion the reasonable expenses incurred in
opposing the motion that may include attorneys’ fees, unless
the court finds that the making of the motion was substantially
justified or that other circumstances make an award of
expenses unjust. If the motion is granted in part and denied in
part, the court may apportion the reasonable expenses incurred
as a result of making the motion among the parties and persons.
**********
RULE 12.615 CIVIL CONTEMPT IN SUPPORT
MATTERS
(a) Applicability. This rule governs civil contempt
proceedings in support matters related to family law cases. The
use of civil contempt sanctions under this rule shall be limited
to those used to compel compliance with a court order or to
compensate a movant for losses sustained as a result of a
contemnor’s willful failure to comply with a court order.
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Contempt sanctions intended to punish an offender or to
vindicate the authority of the court are criminal in nature and
are governed by Florida Rules of Criminal Procedure 3.830 and
3.840.
(b) Motion and Notice. Civil contempt may be initiated by
motion. The motion must recite the essential facts constituting
the acts alleged to be contemptuous. No civil contempt may be
imposed without notice to the alleged contemnor and without
providing the alleged contemnor with an opportunity to be
heard. The civil contempt motion and notice of hearing may be
served by mail provided notice by mail is reasonably calculated
to apprise the alleged contemnor of the pendency of the
proceedings. The notice must specify the time and place of the
hearing and must contain the following language: “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.” This notice must also state whether
electronic recording or a court reporter is provided by the court
or whether a court reporter, if desired, must be provided by the
party.
(c) Hearing. In any civil contempt hearing, after the court
makes an express finding that the alleged contemnor had notice
of the motion and hearing:
(1) the court shall determine whether the movant has
established that a prior order directing payment of support was
entered and that the alleged contemnor has failed to pay all or
part of the support set forth in the prior order; and
(2) if the court finds the movant has established all of the
requirements in subdivision (c)(1) of this rule, the court shall,
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(A) if the alleged contemnor is present, determine whether the
alleged contemnor had the present ability to pay support and
willfully failed to pay such support.
(B) if the alleged contemnor fails to appear, set a reasonable
purge amount based on the individual circumstances of the
parties. The court may issue a writ of bodily attachment and
direct that, upon execution of the writ of bodily attachment, the
alleged contemnor be brought before the court within 48 hours
for a hearing on whether the alleged contemnor has the present
ability to pay support and, if so, whether the failure to pay such
support is willful.
(d) Order and Sanctions. After hearing the testimony and
evidence presented, the court shall enter a written order
granting or denying the motion for contempt.
(1) An order finding the alleged contemnor to be in contempt
shall contain a finding that a prior order of support was entered,
that the alleged contemnor has failed to pay part or all of the
support ordered, that the alleged contemnor had the present
ability to pay support, and that the alleged contemnor willfully
failed to comply with the prior court order. The order shall
contain a recital of the facts on which these findings are based.
(2) If the court grants the motion for contempt, the court may
impose appropriate sanctions to obtain compliance with the
order including incarceration, attorneys’ fees, suit money and
costs, compensatory or coercive fines, and any other coercive
sanction or relief permitted by law provided the order includes
a purge provision as set forth in subdivision (e) of this rule.
(e) Purge. If the court orders incarceration, a coercive fine, or
any other coercive sanction for failure to comply with a prior
support order, the court shall set conditions for purge of the
contempt, based on the contemnor’s present ability to comply.
The court shall include in its order a separate affirmative
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finding that the contemnor has the present ability to comply
with the purge and the factual basis for that finding. The court
may grant the contemnor a reasonable time to comply with the
purge conditions. If the court orders incarceration but defers
incarceration for more than 48 hours to allow the contemnor a
reasonable time to comply with the purge conditions, and the
contemnor fails to comply within the time provided, the
movant shall file an affidavit of noncompliance with the court.
If payment is being made through the Central Governmental
Depository, a certificate from the depository shall be attached
to the affidavit. The court then may issue a writ of bodily
attachment. Upon incarceration, the contemnor must be
brought before the court within 48 hours for a determination of
whether the contemnor continues to have the present ability to
pay the purge.
(f) Review after Incarceration. Notwithstanding the
provisions of this rule, at any time after a contemnor is
incarcerated, the court on its own motion or motion of any
party may review the contemnor’s present ability to comply
with the purge condition and the duration of incarceration and
modify any prior orders.
(g) Other Relief. Where there is a failure to pay support or to
pay support on a timely basis but the failure is not willful,
nothing in this rule shall be construed as precluding the court
from granting such relief as may be appropriate under the
circumstances.
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Governing Statutes
Florida Statute 61.14 Enforcement and modification of
support, maintenance, or alimony agreements or orders.-(1)(a) When the parties enter into an agreement for payments
for, or instead of, support, maintenance, or alimony, whether in
connection with a proceeding for dissolution or separate
maintenance or with any voluntary property settlement, or
when a party is required by court order to make any payments,
and the circumstances or the financial ability of either party
changes or the child who is a beneficiary of an agreement or
court order as described herein reaches majority after the
execution of the agreement or the rendition of the order, either
party may apply to the circuit court of the circuit in which the
parties, or either of them, resided at the date of the execution of
the agreement or reside at the date of the application, or in
which the agreement was executed or in which the order was
rendered, for an order decreasing or increasing the amount of
support, maintenance, or alimony, and the court has
jurisdiction to make orders as equity requires, with due regard
to the changed circumstances or the financial ability of the
parties or the child, decreasing, increasing, or confirming the
amount of separate support, maintenance, or alimony provided
for in the agreement or order. A finding that medical insurance
is reasonably available or the child support guidelines in s.
61.30 may constitute changed circumstances. Except as
otherwise provided in s. 61.30(11)(c), the court may modify an
order of support, maintenance, or alimony by increasing or
decreasing the support, maintenance, or alimony retroactively
to the date of the filing of the action or supplemental action for
modification as equity requires, giving due regard to the
changed circumstances or the financial ability of the parties or
the child.
(b)1. The court may reduce or terminate an award of alimony
upon specific written findings by the court that since the
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granting of a divorce and the award of alimony a supportive
relationship has existed between the obligee and a person with
whom the obligee resides. On the issue of whether alimony
should be reduced or terminated under this paragraph, the
burden is on the obligor to prove by a preponderance of the
evidence that a supportive relationship exists.
2. In determining whether an existing award of alimony should
be reduced or terminated because of an alleged supportive
relationship between an obligee and a person who is not related
by consanguinity or affinity and with whom the obligee
resides, the court shall elicit the nature and extent of the
relationship in question. The court shall give consideration,
without limitation, to circumstances, including, but not limited
to, the following, in determining the relationship of an obligee
to another person:
a. The extent to which the obligee and the other person have
held themselves out as a married couple by engaging in
conduct such as using the same last name, using a common
mailing address, referring to each other in terms such as "my
husband" or "my wife," or otherwise conducting themselves in
a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the
other person in a permanent place of abode.
c. The extent to which the obligee and the other person have
pooled their assets or income or otherwise exhibited financial
interdependence.
d. The extent to which the obligee or the other person has
supported the other, in whole or in part.
e. The extent to which the obligee or the other person has
performed valuable services for the other.
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f. The extent to which the obligee or the other person has
performed valuable services for the other's company or
employer.
g. Whether the obligee and the other person have worked
together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly
contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other
person have an express agreement regarding property sharing
or support.
j. Evidence in support of a claim that the obligee and the other
person have an implied agreement regarding property sharing
or support.
k. Whether the obligee and the other person have provided
support to the children of one another, regardless of any legal
duty to do so.
3. This paragraph does not abrogate the requirement that every
marriage in this state be solemnized under a license, does not
recognize a common law marriage as valid, and does not
recognize a de facto marriage. This paragraph recognizes only
that relationships do exist that provide economic support
equivalent to a marriage and that alimony terminable on
remarriage may be reduced or terminated upon the
establishment of equivalent equitable circumstances as
described in this paragraph. The existence of a conjugal
relationship, though it may be relevant to the nature and extent
of the relationship, is not necessary for the application of the
provisions of this paragraph.
(c) For each support order reviewed by the department as
required by s. 409.2564(11), if the amount of the child support
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award under the order differs by at least 10 percent but not less
than $25 from the amount that would be awarded under s.
61.30, the department shall seek to have the order modified and
any modification shall be made without a requirement for proof
or showing of a change in circumstances.
(d) The department shall have authority to adopt rules to
implement this section.
(2) When an order or agreement is modified pursuant to
subsection (1), the party having an obligation to pay shall pay
only the amount of support, maintenance, or alimony directed
in the new order, and the agreement or earlier order is modified
accordingly. No person may commence an action for
modification of a support, maintenance, or alimony agreement
or order except as herein provided. No court has jurisdiction to
entertain any action to enforce the recovery of separate support,
maintenance, or alimony other than as herein provided.
(3) This section is declaratory of existing public policy and of
the laws of this state.
(4) If a party applies for a reduction of alimony or child
support and the circumstances justify the reduction, the court
may make the reduction of alimony or child support regardless
of whether or not the party applying for it has fully paid the
accrued obligations to the other party at the time of the
application or at the time of the order of modification.
(5)(a) When a court of competent jurisdiction enters an order
for the payment of alimony or child support or both, the court
shall make a finding of the obligor's imputed or actual present
ability to comply with the order. If the obligor subsequently
fails to pay alimony or support and a contempt hearing is held,
the original order of the court creates a presumption that the
obligor has the present ability to pay the alimony or support
and to purge himself or herself from the contempt. At the
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contempt hearing, the obligor shall have the burden of proof to
show that he or she lacks the ability to purge himself or herself
from the contempt. This presumption is adopted as a
presumption under s. 90.302(2) to implement the public policy
of this state that children shall be maintained from the
resources of their parents and as provided for in s. 409.2551,
and that spouses be maintained as provided for in s. 61.08. The
court shall state in its order the reasons for granting or denying
the contempt.
(b) In a proceeding in circuit court to enforce a support order
under this chapter, chapter 88, chapter 409, or chapter 742, or
any other provision of law, if the court finds that payments due
under the support order are delinquent or overdue and that the
obligor is unemployed, underemployed, or has no income but
is able to work or participate in job training, the court may
order the obligor to:
1. Seek employment.
2. File periodic reports with the court, or with the department
if the department is providing Title IV-D services, detailing the
obligor's efforts to seek and obtain employment during the
reporting period.
3. Notify the court or the department, as appropriate, upon
obtaining employment, income, or property.
4. Participate in job training, job placement, work experience,
or other work programs that may be available pursuant to
chapter 445, chapter 446, or any other source.
An obligor who willfully fails to comply with a court order to
seek work or participate in other work-related activities may be
held in contempt of court. This paragraph is in furtherance of
the public policy of the state of ensuring that children are
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maintained from the resources of their parents to the extent
possible.
(6)(a)1. When support payments are made through the local
depository or through the State Disbursement Unit, any
payment or installment of support which becomes due and is
unpaid under any support order is delinquent; and this unpaid
payment or installment, and all other costs and fees herein
provided for, become, after notice to the obligor and the time
for response as set forth in this subsection, a final judgment by
operation of law, which has the full force, effect, and attributes
of a judgment entered by a court in this state for which
execution may issue. No deduction shall be made by the local
depository from any payment made for costs and fees accrued
in the judgment by operation of law process under paragraph
(b) until the total amount of support payments due the obligee
under the judgment has been paid.
2. A certified statement by the local depository evidencing a
delinquency in support payments constitute evidence of the
final judgment under this paragraph.
3. The judgment under this paragraph is a final judgment as to
any unpaid payment or installment of support which has
accrued up to the time either party files a motion with the court
to alter or modify the support order, and such judgment may
not be modified by the court. The court may modify such
judgment as to any unpaid payment or installment of support
which accrues after the date of the filing of the motion to alter
or modify the support order. This subparagraph does not
prohibit the court from providing relief from the judgment
pursuant to Rule 1.540, Florida Rules of Civil Procedure.
(b)1. When an obligor is 15 days delinquent in making a
payment or installment of support and the amount of the
delinquency is greater than the periodic payment amount
164
ordered by the court, the local depository shall serve notice on
the obligor informing him or her of:
a. The delinquency and its amount.
b. An impending judgment by operation of law against him or
her in the amount of the delinquency and all other amounts
which thereafter become due and are unpaid, together with
costs and a service charge of up to $7.50, for failure to pay the
amount of the delinquency.
c. The obligor's right to contest the impending judgment and
the ground upon which such contest can be made.
d. The local depository's authority to release information
regarding the delinquency to one or more credit reporting
agencies.
2. The local depository shall serve the notice by mailing it by
first class mail to the obligor at his or her last address of record
with the local depository. If the obligor has no address of
record with the local depository, service shall be by publication
as provided in chapter 49.
3. When service of the notice is made by mail, service is
complete on the date of mailing.
(c) Within 15 days after service of the notice is complete, the
obligor may file with the court that issued the support order, or
with the court in the circuit where the local depository which
served the notice is located, a motion to contest the impending
judgment. An obligor may contest the impending judgment
only on the ground of a mistake of fact regarding an error in
whether a delinquency exists, in the amount of the
delinquency, or in the identity of the obligor.
165
(d) The court shall hear the obligor's motion to contest the
impending judgment within 15 days after the date of the filing
of the motion. Upon the court's denial of the obligor's motion,
the amount of the delinquency and all other amounts which
thereafter become due, together with costs and a service charge
of up to $7.50, become a final judgment by operation of law
against the obligor. The depository shall charge interest at the
rate established in s. 55.03 on all judgments for support.
(e) If the obligor fails to file a motion to contest the impending
judgment within the time limit prescribed in paragraph (c) and
fails to pay the amount of the delinquency and all other
amounts which thereafter become due, together with costs and
a service charge of up to $7.50, such amounts become a final
judgment by operation of law against the obligor at the
expiration of the time for filing a motion to contest the
impending judgment.
(f)1. Upon request of any person, the local depository shall
issue, upon payment of a service charge of up to $7.50, a
payoff statement of the total amount due under the judgment at
the time of the request. The statement may be relied upon by
the person for up to 30 days from the time it is issued unless
proof of satisfaction of the judgment is provided.
2. When the depository records show that the obligor's account
is current, the depository shall record a satisfaction of the
judgment upon request of any interested person and upon
receipt of the appropriate recording fee. Any person shall be
entitled to rely upon the recording of the satisfaction.
3. The local depository, at the direction of the department, or
the obligee in a non-IV-D case, may partially release the
judgment as to specific real property, and the depository shall
record a partial release upon receipt of the appropriate
recording fee.
166
4. The local depository is not liable for errors in its
recordkeeping, except when an error is a result of unlawful
activity or gross negligence by the clerk or his or her
employees.
(g) The local depository shall send the department monthly by
electronic means a list of all Title IV-D and non-Title IV-D
cases in which a judgment by operation of law has been
recorded during the month for which the data is provided. At a
minimum, the depository shall provide the names of the obligor
and obligee, social security numbers of the obligor and obligee,
if available, and depository number.
(7) When modification of an existing order of support is
sought, the proof required to modify a settlement agreement
and the proof required to modify an award established by court
order shall be the same.
(8)(a) When an employee and an employer reach an agreement
for a lump-sum settlement under s. 440.20(11), no proceeds of
the settlement shall be disbursed to the employee, nor shall any
attorney's fees be disbursed, until after a judge of compensation
claims reviews the proposed disbursement and enters an order
finding the settlement provides for appropriate recovery of any
support arrearage. The employee, or the employee's attorney if
the employee is represented, shall submit a written statement
from the department that indicates whether the employee owes
unpaid support and, if so, the amount owed. In addition, the
judge of compensation claims may require the employee to
submit a similar statement from a local depository established
under s. 61.181. A sworn statement by the employee that all
existing support obligations have been disclosed is also
required. If the judge finds the proposed allocation of support
recovery insufficient, the parties may amend the allocation of
support recovery within the settlement agreement to make the
allocation of proceeds sufficient. The Office of the Judges of
167
Compensation Claims shall adopt procedural rules to
implement this paragraph.
(b) In accordance with the provisions of s. 440.22, any
compensation due or that may become due an employee under
chapter 440 is exempt from garnishment, attachment,
execution, and assignment of income, except for the purposes
of enforcing child or spousal support obligations.
(9) Unless otherwise ordered by the court or agreed to by the
parties, the obligation to pay the current child support for that
child is terminated when the child reaches 18 years of age or
the disability of nonage is removed. The termination of the
current child support obligation does not otherwise terminate
the obligation to pay any arrearage, retroactive support,
delinquency, or costs owed by the obligor.
(10)(a) In a Title IV-D case, if an obligation to pay current
child support is terminated due to the emancipation of the child
and the obligor owes an arrearage, retroactive support,
delinquency, or costs, the obligor shall continue to pay at the
same rate in effect immediately prior to emancipation until all
arrearages, retroactive support, delinquencies, and costs are
paid in full or until the amount of the order is modified. Any
income-deducted amount or amount paid by the obligor which
is in excess of the obligation to pay current support shall be
credited against the arrearages, retroactive support,
delinquency, and costs owed by the obligor.
(b) In a Title IV-D case, if an obligation to pay current child
support for multiple children is reduced due to the
emancipation of one child and the obligor owes an arrearage,
retroactive support, delinquency, or costs, the obligor shall
continue to pay at the same rate in effect immediately prior to
emancipation until all arrearages, retroactive support,
delinquencies, and costs are paid in full or until the amount of
the order is modified. Any income-deducted amount or amount
168
paid by the obligor which is in excess of the obligation to pay
current support shall be credited against the arrearages,
retroactive support, delinquency, and costs owed by the
obligor. If an obligation to pay current support for more than
one child is not reduced when a child is emancipated because
the order does not allocate support per child, this paragraph
does not apply.
(c) Paragraphs (a) and (b) provide an additional remedy for
collection of unpaid support and apply to cases in which a
support order was entered before, on, or after July 1, 2004.
(11)(a) A court may, upon good cause shown, and without a
showing of a substantial change of circumstances, modify,
vacate, or set aside a temporary support order before or upon
entering a final order in a proceeding.
(b) The modification of the temporary support order may be
retroactive to the date of the initial entry of the temporary
support order; to the date of filing of the initial petition for
dissolution of marriage, initial petition for support, initial
petition determining paternity, or supplemental petition for
modification; or to a date prescribed in paragraph (1)(a) or s.
61.30(11)(c) or (17), as applicable.
Note.--Former s. 65.15.
169
Index
Arrest ................................................................. 19, 85, 86, 155
Certificate of Service ........................................................ 63, 64
Contempt ......................................................................... 54, 61
Courts of equity..................................................................... 116
Dirty Dog Law ........................................................................ 40
Discovery.......................................................................... 50, 51
F.S. 61.14.................................................................. 22, 42, 158
Fla. Fam. L. R. P. .............................................................. 48, 50
Fla. R. Civ. P......................................... 48, 50, 51, 53, 115, 144
Florida Bar Association .................................................. 48, 122
Garnishment................................................................ 1, 30, 37
Involuntary servitude ............................................................ 120
Judicial economy .............................................................. 65, 89
Jury trial ................................................................ 115, 116, 117
Loislaw.............................................................................. 44, 45
Magistrate ................................................................... 57, 58, 61
Mandatory disclosure................................ 62, 67, 146, 150, 151
Money judgment ..................................................................... 82
Non-evidentiary .............................................. 57, 62, 68, 69, 83
Paper trail ................................................................................ 75
Phone Appearance ............................................................ 57, 62
Purge ................................................... 1, 17, 20, 21, 25, 26, 156
Script ....................................................................................... 70
Standard forms ............................................................ 47, 48, 51
Unclean hands................................................................... 75, 78
Uniform Interstate Family Support Act ........................... 114
Westlaw............................................................................. 44, 45

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