Leo v. Leo
Case No. 4D10-5127

In this family law appeal, appellant, Former Wife, appealed an order finding her in civil contempt. This appeal stemmed from a final judgment of dissolution of marriage between the appellant and the appellee, Former Husband. Subsequent to entry of the final judgment, Former Husband filed a motion for civil contempt and enforcement, alleging that Former Wife failed to comply with provisions in the final judgment, as well as an agreed order entered by the trial court. Former Husband’s attorney filed this motion alleging the Former Wife failed to return Former Husband’s belongings.

A hearing was scheduled on Former Husband’s motion for civil contempt but prior to the hearing, Former Husband’s attorney informed Former Wife’s attorney that the hearing had been cancelled because the trial court made its ruling. Former Husband then provided the trial court with two proposed orders, both finding Former Wife in civil contempt, one of which was ultimately adopted by the trial court. The adopted order stated that “it is undisputed that Former Wife has willfully and wantonly violated the Agreed Order”; that “Former Wife has failed to meet her burden of proving that she either lacked or presently lacks the ability to comply with the Court’s Final Judgment and Agreed Order, or that she is not in willful non-compliance with lawful orders of this Court”; that Former Wife’s non-compliance was “willful and deliberate”; and that Former Wife “has the present ability to comply.”

The court reviewed the record and found that even though relevant evidence may have been presented during the preceding dissolution proceedings, Former Wife was still entitled to present evidence in the context of a civil contempt hearing. “A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard.” Whitby v. Infinity Radio, Inc., 961 So. 2d 349, 355 (Fla. 4th DCA 2007). Because that civil contempt order was entered without an evidentiary hearing, the Fourth District Court of Appeal reversed and remanded this matter.

Drdek v. Drdek,
Case No. 4D10-3082

We represented a former wife who originally filed a motion for contempt shortly after the parties divorced, due to the former husband’s non-payment of alimony despite his recent receipt of significant income from social security. The trial court adopted the magistrate’s recommendation to deny former wife’s motion because the parties’ marital settlement agreement (“MSA”) exempted retirement benefits. The former wife then filed another motion for contempt for non-payment of alimony that was heard by a different magistrate. The second magistrate rejected the proposition that she was bound by the law of the case doctrine to recommend denial, and found that a manifest injustice would result. The second magistrate found the first magistrate’s interpretation of the MSA clearly erroneous. However, the trial court sustained the former husband’s exceptions to the second magistrate’s recommendation, finding that the law of the case applied and a magistrate could not overrule the prior circuit court ruling on the grounds of manifest injustice.

On appeal, the Fourth DCA agreed with our position that the law of the case did not apply where the proceedings did not involve a prior appellate court. The trial court was therefore not bound by the law of the case to sustain the former husband’s objections to the second magistrate’s recommendation. The Fourth DCA held that the second magistrate was bound by the general principle that a successor judge may not correct errors of law on the same facts presented to the predecessor judge. However, the Fourth DCA remanded in part on the issue of past-due alimony pursuant to the former husband’s non-modifiable obligation in the MSA.

This result allowed our client to seek to obtain past due alimony from the former husband’s other assets.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing.] **

United Automobile Ins. Co. v. Millennium Radiology, LLC
Case No: 4D11-3248

United Automobile Insurance Company (“United”) appealed a county court order to the circuit court sitting in its appellate capacity. The circuit court panel believed that the order was not appealable as originally rendered, and issued an order to United to show cause why the appeal should not be dismissed. The circuit court then allowed United to obtain a corrected final order, but provided that the appeal would be dismissed if United failed to obtain the corrected final order before the record was transmitted. This was impossible because the record had already been transmitted at the time the circuit court issued that order. United obtained a corrected final order and filed an amended notice of appeal within five days. The circuit court still dismissed the appeal.

On certiorari review, the Fourth DCA held that the circuit court departed from the essential requirements of law and denied United due process by dismissing the appeal, since it was literally impossible for United to have complied with the order. The Fourth DCA granted the petition.