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 Court Of Appeals
Jail: An Inmate’s 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
**********
Panama Publishing, Inc.
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.
ISBN: 978-0-9800470-2-8
First edition, October 9, 2007
Table of Contents
Preface................................................................................................. 1
Introduction........................................................................................ 4
Contempt Defined .............................................................................. 9
Understanding Contempt ........................................................... 10
Fulfilling Purge Requirements........................................................ 25
Present Ability To Pay ............................................................... 26
Imputed Income ......................................................................... 26
Unemployed............................................................................... 26
Under-employed ........................................................................ 27
Joint Bank Accounts With Your Name On Them .................... . 27
Court Ordered Garnishment....................................................... 29
Governing Statutes:........................................................................ 29
Homestead exemption:............................................................... 30
Garnishment of Social Security ................................................. 35
Garnishing For Employees Of The Federal Government .......... 36
Other Tactics.............................................................................. 36
Preparation For Research............................................................... 38
Case Law.................................................................................... 39
Statutes....................................................................................... 42
Unbundled Legal Services ............................................................. 45
Typical Documents Involved In Contempt Hearings .................. 47
Discovery Documents For Contempt Hearings ............................. 50
Notice of Production from Non-Party........................................ 51
Motions .......................................................................................... 52
Motions to Dismiss .................................................................... 54
Motion for Extension of Time .................................................. 55
Motion for Phone Appearance ................................................... 55
Motion for Referral to General Master ...................................... 56
Appendix to Motions ................................................................. 58
Notices ........................................................................................... 58
Notice of Compliance ................................................................ 58
Notice of Hearing Before General Master ................................. 59
Notice of Trial............................................................................ 59
Miscellaneous Documents ............................................................. 61
Certificate of Service ................................................................. 61
Documents For Petition For Modification Of Alimony ................ 62
Supplemental Petition For Modification Of Alimony .............. 62
Standard Family Law Interrogatories ........................................ 64
Uniform Motion Calendar .............................................................. 67
Tips On Preparing Documents ....................................................... 70
Financial Affidavits ....................................................................... 71
The Ex-spouse’s Financial Affidavit ............................................. 73
Tactics And Techniques For Defense Against Contempt............ 76
Notice of Hearing ............................................................................. 80
Preparing For Court........................................................................ 87
Money in the Bank..................................................................... 90
Credit Cards And Other Assets................................................. : 90
Court Reporter ........................................................................... 91
Court Hearing .................................................................................. 93
Procedures In Court ................................................................... 95
Incarceration .................................................................................... 99
Plan B............................................................................................. 99
Habeas Corpus ............................................................................. 100
Arrest Order Enforcement In Other States ............................... 106
Request For Jury Trial.................................................................. 108
In Closing........................................................................................ 110
Appendix......................................................................................... 112
Referenced Links .................................................................... : 112
Resources: ................................................................................ 113
Forum Resources ..................................................................... 113
Relevant Caselaw......................................................................... 114
Applicable Rules of Procedure .................................................... 118
Governing Statutes....................................................................... 129
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.
.... 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
Preface
W
hat is Pro Se? It is Latin "for himself," "on one's own
behalf" A person who represents themselves 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 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.
1
Preface
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 exspouse will have one. They usually do when they figure that you will
be paying their lawyer when you lose the case. But, if you can win,
they will have to pay their own counsel.
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 having
to pay an immediate purge amount for support payment arrearages in
order to avoid being held in contempt of court. Also, you might end up
paying the other side’s legal fees for them having had to file motions
for contempt against you. Of course, if you aren’t able to pay, you
might find yourself a guest of the county for a period of time.
Knowing that you don’t have a lawyer will throw the other side
off balance when you suddenly start defending yourself by 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 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
2
Preface
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 “self-help
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 made aware of
how to fight back on a pro se basis when they can’t afford a lawyer.
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, new developments, etc. as further illustrations of
the chapters in this book.
Table of Contents
3
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 in order to defend yourself?
The chances of being involved in a court trial over alimony
payments are not a question of "IF" but "WHEN". Unless you are
substantially well off, there will come a time when your ability to keep
paying alimony will lessen or stop altogether. After that, you will be
held in contempt of court for falling behind in your payments. Then
what will you do?
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
4
Introduction
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 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 of the system to make it
more equitable and eliminate the injustices. My thanks go out to them.
5
Introduction
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 lawyer-to-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.
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.
6
Introduction
In all your efforts with the trial court, keep in mind that even if
the judge doesn’t rule in your favor, you can always appeal his ruling.
This would apply in instances where the judge might have not ruled
correctly on the law as applied to the facts, exhibited prejudice or any
other number of things that would have resulted in a miscarriage of
justice.
Therefore don’t let things like this upset you too much. Just be
sure to document them completely so you can use them in your appeal.
If you get to this stage, you will want to read one of our other pro se
self-help publications “How To Appeal In State Courts Of Appeals.”
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 legal
counsel, 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 needing preferential treatment. Who wouldn’t
side with a Mom with children? It’s natural for them to use this public
7
Introduction
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. The Federal
Bureau of Labor Statistics now shows where approximately one-third
of the women in this country are the breadwinners in their household.
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.
Table of Contents
8
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.
9
Contempt Defined
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
guaranteed 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, all because of alimony payments.
The most egregious form of alimony is the one imposed on an
unlucky spouse for the indefinite period of a “lifetime.” Truly, in this
case, will part of the marriage oath which says that “until death do
you part” apply. That is to say that the death of either spouse is the
only “sure” event that will terminate the lifetime alimony obligation.
The imposition of “lifetime” alimony is the one thing that
prevents the “closure” of an unfortunate event in a married couples
life, namely, that of a marriage gone bad. It prevents both spouses
from getting on with their life and returning to some semblance of a
normal life from that point on.
Lifetime alimony is a tragedy of today’s society that plays a
major part in the destruction of the institution of marriage in America.
Spouses receiving alimony apparently don’t want to get married again
for fear of losing that welfare payment and the spouses paying alimony
hesitate to get remarried because of the court’s lifelong jurisdiction in
their lives and the financial hardships they impose.
In addition, many men of marrying age can see, from what has
happened to other men, that they are facing the possibility of financial
suicide that can result from a divorce. They can see what the family
law system has done to divorced men by separating their children from
them along with imposing other indignities. Contempt of court is one
of these other indignities.
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
10
Contempt Defined
1999, Revised and Updated by Judge John C. Lenderman February
2002. (Full report on the support website)
While it might appear technical and somewhat difficult to
understand, it is necessary for you to start learning the legal language
early on. 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 understand and use them.
As a brief temporary explanation, case cites are usually part of
an opinion rendered by courts of appeal containing legal precedents
that judges rely on for their rulings. In court documents normally you
will present a statement of your argument, then support it with a
precedential opinion excerpt. At the beginning or the end of the
excerpt, you give the case cite from where it was taken. This way, the
judge can check your case cite by pulling up the whole case to which it
refers.
For now, just read the explanations to get a feeling of what
contempt entails and skip by the case cites, rules of procedure or parts
you don’t understand. After you learn more about them later, you can
come back and re-read those parts again and they will make more
sense. Repetition is a good basis of learning.
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.
Author’s Note: In this case cite, there is the use of the term
“Ex Parte.” It is one of which you should be aware. The Lectric
Law website gives this definition of the term:
Latin: 'By or for one party' or 'by one side.'
11
Contempt Defined
It refers to situations in which only one party (and not the
adversary) appears before a judge. Such meetings are often
forbidden.
Although a judge is normally required to meet with all parties
in a case and not with just one, there are circumstances where
this rule does not apply and the judge is allowed to meet with
just one side (ex parte) such as where a plaintiff requests an
order (say to extend time for service of a summons) or
dismissal before the answer or appearance of the defendant(s).
In addition, sometimes judges will issue temporary orders ex
parte (that is, based on one party's request without hearing from
the other side) when time is limited or it would do no apparent
good to hear the other side of the dispute. For example, if a
wife claims domestic violence, a court may immediately issue
an ex parte order telling her husband to stay away. Once he's
out of the house, the court holds a hearing, where he can tell
his side and the court can decide whether the ex parte order
should be made permanent.
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).
12
Contempt Defined
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 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
13
Contempt Defined
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 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
14
Contempt Defined
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 and 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, 311 So.2d
822 (Fla. 3d DCA 1975), cert. denied, 328 So.2d 845 (Fla.
1975).
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).
c. 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)
d. Motion and notice must specify acts claimed to be
contemptuous
e. 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.
15
Contempt Defined
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:
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).
16
Contempt Defined
4. Incarceration
a. Incarceration may be ordered but ONLY if purge
provision is provided AND court finds that 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
Note: See Florida Family Law Rules of Procedure 12.615
17
Contempt Defined
governing civil contempt proceedings in support 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 (by movant or plaintiff).
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 all of the following words:
“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
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.
18
Contempt Defined
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
Note: A purge as used in this instance usually refers to an
amount of money you need to pay to clear yourself of the contempt
violations
a. If court orders jail, coercive fine or any other coercive
sanction – must set conditions for purge of contempt based
upon present ability to comply.
i. CASE: Purge provision requiring, inter alia, that exhusband "not expose the children to his hostility toward
the Former Wife" was too broad and indefinite. Lanza
19
Contempt Defined
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 noncompliance from movant and certificate from Depository,
when issuing writ of bodily attachment.
e. Court may jail upon proof of non-compliance, but must redetermine 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, “[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
20
Contempt Defined
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 [author emphasis
added]:
(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:
21
Contempt Defined
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
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 support 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
22
Contempt Defined
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.”
For general purposes, item (b) will be the one upon which you
should concentrate and use for your defense at the hearing.
Note: See Florida Family Law Rules of Procedure (Fla. Fam.
L. R .P.)12.615 governing civil contempt proceedings in support
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. L. 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 review them and to be aware and knowledgeable about
them.
The court will make allowance in a lot of things for you, as a
pro se, but they still expect you to follow these rules very closely.
They give you less leeway in this area.
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 by reading them. 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
here, if you fail, you could end up in jail.
23
Contempt Defined
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.
Table of Contents
24
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:
25
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 the caselaw of 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.
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.
26
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.
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
27
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 with which
you would have to find an explanation for, should you be questioned,
would be to explain why, after the “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, Vega
v. Swait, 4D07-932 (Fla.App. 4 Dist. 8-1-2007). 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, see Vega v. Swait.
28
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.
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
29
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 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
30
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);
31
Lena v. Clinkenbeard, 172 Okla. 6, 44 P.2d 2 (1935). In
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 ex-wife. 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 are 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
32
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.
(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 one-half of the
support for a child or other dependent.
33
(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.
34
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 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
35
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
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
36
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.
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 above-mentioned 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.
Table of Contents
37
Preparation For Research
ow can you prepare yourself in order to understand what is
needed to defend yourself in court? Where can you go to 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
2. Represent Yourself In Court by Bergman & BermanBarrett
You can find these books at:
www.panama-publishing.com or your local library might have a copy
of them you can borrow.
38
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. Most all the laws pertaining to how the courts
will be guided in making their rulings can be found either in a state’s
statutes or caselaw citations (cites.)
Case Law
What is case law? Once a court determines what the law is on a
given issue (for example, when it determines what a given statute
means), it applies the law to the facts of the case before it, and issues
its decision.
Case law is law made by courts in published decisions called
opinions. Only published opinions may be considered "precedential,"
meaning they have become "law." When a case is precedential, other
courts within that jurisdiction are bound to apply the rule and
reasoning expressed in the opinion, to ensure certainty and uniformity
in the administration of the law. However, courts may depart from
precedent for compelling policy reasons, or where the facts of one case
are significantly distinguishable from the other.
In most cases, courts are called upon to interpret and apply
statutes, however, judicial opinions also continue to define and
develop what is known as the "common law." Common law is a body
of law that was first developed in the English courts based on custom
and general principles, and set forth in court opinions. In time, much
of the common law was put into statutory form, or "codified," so now,
many common law principles are represented in our statutes. Some
states have much more codified law than common law, such as
California, which has a statutory code to cover almost every aspect of
human existence! Where there is no controlling statute, however, the
common law, found in published court opinions, establishes what the
law is.
Court opinions are published in bound volumes called
reporters, some of which contain the decisions of a single jurisdiction,
while others contain the decisions of several courts, grouped together
by geographic region. The citation that corresponds to a published
opinion consists of the reporter volume number; the abbreviated name
of the reporter, and the page number on which the case report (the
39
opinion) begins. The year the decision was rendered also typically
follows the citation, and appears in parentheses. As an example, here is
a case cite you might have heard mentioned in your family law case:
Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985). Here’s how it is broken
down:
• Bowen v. Bowen – indicates the parties to the case. Plaintiff v.
Defendant in the lower court and in the appeals court Appellant v.
Appellee.
• 471 So.2d 1274 – indicates the place where the legal reference
can be found which is the Southern Reporter, 2nd edition (referred
to as Southern 2nd), page 1274.
• (Fla. 1985) indicates the Florida Supreme Court and was
decided in 1985.
You will be using case law to support the arguments (or
statements,) that will be contained in the documents you will submit to
the court or that will be used to show where the opposition arguments
are in error.
For instance, you might want to emphasize that you have no
ability to pay and that the opposition hasn’t provided a factual finding
of your ability to pay. You could then use a cite to support a statement
you make something like the following.
This court has never made an affirmative factual
finding of any present ability to pay that supports the purge
amounts imposed on Former Husband.
In the case of Pompey v. Cochran, 685 So. 2d 1007
(Fla. 4th DCA 1997) it states:
“the presumption of ability to pay which exists in the first
step….is not a substitute for the separate, affirmative finding
of ability to pay required for incarceration.”
Another one you might use to show the court that they needed
to look at your ability to pay would be the following:
In Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997, the court said that:
40
“to ensure that both parties have similar access to
competent legal counsel, the trial court must look to each
spouse's need for suit money versus each spouse's
respective ability to pay."
Or, you might be claiming that you have reached the retirement
age of 65 and are now allowed to legally retire. You would then make
that statement of fact in your argument to the extent that voluntary
retirement at age 65 is considered by the courts as a valid “change of
circumstances” and then support it with the cite of Pimm v. Pimm, 601
So.2d 534 (Fla. 1992) where it states:
“We review Pimm v. Pimm, 568 So.2d 1299
(Fla. 2d DCA 1990), in which the district court of
appeal certified the following question as a matter of
great public importance:
IS THE POSTJUDGMENT RETIREMENT
OF A SPOUSE WHO IS OBLIGATED TO MAKE
SUPPORT OR ALIMONY PAYMENTS PURSUANT
TO A JUDGMENT OF DISSOLUTION OF
MARRIAGE A CHANGE OF CIRCUMSTANCE
THAT MAY BE CONSIDERED TOGETHER WITH
OTHER RELEVANT FACTORS AND APPLICABLE
LAW UPON A PETITION TO MODIFY SUCH
ALIMONY OR SUPPORT PAYMENTS?
Id. at 1301. We have jurisdiction pursuant to
article V, section 3(b)(4) of the Florida Constitution,
and answer the question in the affirmative.”
Further examples of how to use these cites will be
found in the court-filed cases illustrated on the two websites
mentioned in the appendix referenced links.
41
Statutes
More than likely, your state will have a website where you can
find the statutes. If not go to the following website:
http://straylight.law.cornell.edu/states/listing.html
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. It will be accompanied or
followed shortly by a notice of hearing for 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.
Since each case is different, the number of documents used by
either side could go from a simple one where there is just a motion for
contempt accompanied by a notice of hearing where you might reply
with a motion to deny contempt to ones like the extreme number of
case documents found at the following website:
www.abolish-alimony.org/alimony-legal-filings.htm
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.
42
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).
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. A recent caselaw can
sometimes cause a conflict with an older caselaw. Even the ones
quoted in this book might have been revised from the time of
publishing this book until when 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, 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
43
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.
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.
At either the public or law libraries, check to see if they have
books or references on “standard motions” that you might incorporate
into your documents.
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.
44
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 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.
For those of you who are unable to afford the above programs,
there is another option. The most widely used alternative to Office is
an open-source program called OpenOffice, which is sponsored by
Sun Microsystems. OpenOffice tries to match all the major features of
Microsoft's program.
There are a variety of Web-based programs that can replace all
or parts of the Office programs, including ThinkFree Office Online,
word processor Writely, spreadsheet maker NumSum, and e-mail
program Thunderbird. All of this software is significantly less
expensive that Microsoft Office -- it's absolutely free.
OpenOffice can read files created in Microsoft Office, and it
can create new files that Office can open. So, ideally, you could take
home spreadsheets created at work using Excel, and work on them on
your home computer without having to buy Office.
45
Armed with the above information, you are now ready to move
on to the type of documents that are typically used in appeal cases and
start the ball rolling.
Table of Contents
46
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 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 on the support site.
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 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 self-represented, pro se basis from the circuit court
47
Typical Documents Involved In Contempt Hearings
all the way 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
flexibility, 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 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). A copy goes to the other party..
48
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 on the www.abolishalimony.org websites. 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 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.
Lastly, you need to keep aware of the timing involved with
filing and responding to documents. Normally, there are time limits
imposed on them and you need to read the appropriate Fla. Fam. L. R.
P. or Fla. R. Civ. P. to find out what they are.
It would help if you would prepare a written schedule of when
49
you need to file a document and when you need to reply to one from
the other side. Also, put it in a reminder calendar to alert you to when
one is due.
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 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.
50
Q Request to Produce
(See sample on support site)
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 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
51
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
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
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:
52
(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. 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
Any time the other side files a motion to request you to do
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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:
“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).
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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.
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
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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 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).
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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
Q Motion to Strike
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.
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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 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.
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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)
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 on the support website. 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
In this situation, you are advising the court that you will attend
by phone. You can only do this for non-evidentiary type hearings. For
evidentiary hearings, you need to make a motion for a phone
appearance in order to get the courts permission.
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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 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
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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
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 basically show a
“substantial change of circumstances” financially since your divorce.
Even if you are in doubt as to whether or not to file it, it might
be in your best interest to submit it to the court and let the judge decide
on the merits of the case. You’ve got nothing to lose and everything to
gain by doing so.
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One of the main benefits of filing this is that you will then be
able to request financial information on your ex-spouse. 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 filing this document, 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 detailed
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 diminished
“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))
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
63
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 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)
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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.
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.
You will find the Uniform Motion Calendar (UMC) is a useful
tool for setting hearings of a non-evidentiary type and whose duration
only requires up to about 10 to 15 minutes. These are sometimes
referred to by different names in different jurisdictions, but most all
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courts have this type of set-up. You will learn about this in the next
chapter.
Table of Contents
66
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 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
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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 on support site)” 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 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
68
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.
Table of Contents
69
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. If they are not valid, do your best to tear them down and prove
them wrong. 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 or
can’t do to you, and what you can do in return to them. Learn from
your opponents. Then find out where their weaknesses are.
70
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 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
71
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 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.
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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 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 current “need” for alimony which will be determined
73
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 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
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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.
Table of Contents
75
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. Remember,
there is no requirement to give it to them unless they request it.
This is not the same as filing a SPMA where financial
discovery is mandatory. 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.
Do the same 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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Tactics And Techniques For Defense Against Contempt
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 the time of sending
your response. Then just be sure you comply with that rule by the time
it is due. There is no advantage to sending it early.
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.
“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
77
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 exspouse 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 the other side has already 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 usually cooperative. 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 ex-spouse 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.
78
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.
Table of Contents
79
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, such as a motion to
compel, 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 definitely 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 on the support website. 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 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
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Notice Of Hearing
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 can 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 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
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Notice Of Hearing
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
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 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
YOU ARE ARRESTED, YOU MAY BE HELD IN
JAIL UP TO 48 HOURS BEFORE A HEARING IS
HELD."
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Notice Of Hearing
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.
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Notice Of 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 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 clause 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.
(Examples of various motions to deny contempt and memorandums of
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Notice Of Hearing
law can be found at the following site:
www.abolish-alimony.org/alimony-legal-filings.htm
It is good practice and a courtesy to co-ordinate with the
opposing lawyer for this. You can note this co-ordination with the
other lawyer on your notice of hearing 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
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Notice Of Hearing
judge to rule on your 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.
Table of Contents
86
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.
You will find it very important to put in writing everything you
want to say in front of the judge into a script. 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.
In your opening statement, your goal is brevity with a
statement of the facts that support your motion and in turn to get the
judge’s attention to your arguments. Tell the court “what” you are
going to prove either in support of your case or where the other side is
in error. Then “elaborate” on the points you are going to prove, 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.
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Preparing For Court
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.
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 all the more easier
for you.
In your statements, you will want to be sure to use quotes from
legal cites to emphasize and justify your reasons why your should not
be held in contempt. These case cites are representative of the higher
court’s interpretations of the “law” upon which the judges base their
rulings. The higher court rulings are considered precedents the lower
courts will have to use.
If the other side uses case cites, it will be rare that they will use
more than a couple. And, there is always a chance they will probably
be outdated ones at that.
In the appendix of this book and on the support website, you
will find important case cites and quotations you can incorporate into
your presentation. You will also want to go to check out Loislaw,
Westlaw or lexisONE to see if any new rulings will help support your
arguments.
If a judge asks you for the name of the cite so they can look it
up, you will respond back with something like the following: Hillier v.
Iglesias, 901 So.2d 947 (Fla.App. 4 Dist. 2005) which is read as:
Hillier versus Iglesias, 901 Southern 2nd page 947, (Florida 4th District
Court of Appeals, 2005)
It is also a good idea to have a copy of the relevant caselaw you
will be using so that you can pass a copy to the opposing side and one
to the judge. When offering anything to the judge, present it first to the
bailiff to have him hand it to the judge.
A good method of assembling your case and order of
presentation is to use a 3-ring “trial 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. 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.
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Preparing For Court
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 so preoccupied with
your presentation and simultaneously trying to follow 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.
Q Present Ability To Pay
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 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
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Preparing For Court
“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 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
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Preparing For Court
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 detrimental to your financial
future.
Q Court Reporter
As a measure of protection, I would strongly advise you to
have a court reporter there. You might think this an 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.
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Preparing For Court
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.
Lastly, in the event trial court rulings might go against you,
consider adding a sentence in your documents “that you are preserving
the right to appeal this case to the appellate court.” This way your right
to appeal is in writing and in the record.
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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Court Hearing
W
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 is 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 accomplish 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.
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.
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Court Hearing
In the former situation, by not attending, it is a surefire way to
get a free vacation at county expense. 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 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.
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Court Hearing
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
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.
It is considered rude to interrupt an opponent. However, it is
permissible for you to “object” to any statements, etc. that are out of
line, false or violate procedures.
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 when and how to do this, which
are explained in the book.
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Court Hearing
Don’t try to memorize them all, but just take a few of the more
important ones and recap them on a tabbed sheet you can add to your
“trial notebook” and use it for quick reference.
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.
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.
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.
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Court Hearing
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 (this copy requirement applies to anything
you will hand to the judge and opposition lawyer.) 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.
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 or
carelessness 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.
The flanking approach goes like this: 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 of
what you filed earlier that day 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.
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Court Hearing
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, 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.
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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 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.
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Incarceration
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.
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. (See sample on the support website.)
The following definition is from the LectLaw.com website. at
www.lectlaw.com/def/h001.htm
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Incarceration
“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
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
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Incarceration
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.
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.
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Incarceration
(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 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.
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Incarceration
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—like 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
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Incarceration
of the matter sought to be reviewed.
(d) Process. If the complaint shows a prima facie (Latin
for "on its face." A prima facie case is one that at first
glance presents sufficient evidence for the plaintiff to
win) 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.
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105
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.”
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Arrest Order Enforcement In Other States
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 ex-spouse 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.
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107
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
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
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Request For Jury Trial
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 non-equitable
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 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.
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109
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 you undertake to fight back against seemingly
overwhelming odds, you 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.
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,
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In Closing
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 how it operates. A better
understanding of what it takes to fight back and the ability to use that
knowledge anytime you need.
In looking 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
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Referenced Links:
•
•
•
•
•
•
•
•
•
Abolish Alimony.org – Good site for court-filed document
examples.
www.abolish-alimony.org
Alimony Reform Association Forum group
http://forum.alimonyvictims.com/
Alliance For Freedom From Alimony, Inc. – Another good site
for court-filed document examples.
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
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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
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Appendix
Relevant Caselaw
Note: To see the full text of the cases cited in the above chapters and
following below, go to the support website at www.panamapublishing.com.
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.
**********
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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).”
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:
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"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.
“Secondly, I believe that the facts of the instant case emphasize the
need for re-examination of the entire concept of alimony and the
continuing viability of that concept in contemporary society. Put in
different words, the question facing the Court is whether a judicially
imposed system of involuntary servitude is to be continued wherein
one human being is placed in bondage to another for what is
effectively the remainder of his natural life.”
**********
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 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.”
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**********
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 and the full text of all
the above case cites.
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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
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.
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(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 45-day
period for exchange of documents provided for in 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
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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.
(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
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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.
(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.
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(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
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
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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.
(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.
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(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 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 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
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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.
*********
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
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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 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
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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. 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.
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(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,
(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
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Appendix
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 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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Appendix
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 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.
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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.
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.
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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 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.
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Appendix
(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 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.
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Appendix
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 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
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Appendix
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 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.
(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.
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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.
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
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Appendix
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 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
137
Appendix
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 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.
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Appendix
(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.
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How To Defend Yourself In Contempt Of Court Hearings

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