Summary
holding trial court erred in refusing to allow hearing on petition for modification before adjudicating question of contempt
Summary of this case from Rosenblum v. RosenblumOpinion
No. 77-1793.
March 14, 1979.
Appeal from the Circuit Court, Broward County, Louis Weissing, J.
Sara Soto and William Berger of Bailey Dawes, P.A., Miami, for appellant.
Harry G. Carratt of Morgan, Carratt O'Connor, P.A., Ft. Lauderdale, for appellee.
On appeal is an order of the trial court finding appellant in contempt for non-payment of alimony. This order is reversed for the same reason we reversed the prior order in this case as reported in Deutsch v. Deutsch, 349 So.2d 725 (Fla. 4th DCA 1977). There was no proper finding of wilfulness and no proper finding of ability to pay. Beyond the insufficiency of the order, the court summarily precluded the appellant from presenting his case thereby rendering the insufficient order wrong even if it were sufficient.
We have also for our consideration the order denying appellant's petition for modification. Again, the trial judge summarily refused to permit the parties their right to be heard on the issues raised by the petition.
The order of contempt is reversed and the order denying modification is reversed with instructions to permit both parties to have a full and fair hearing on the issues of modification followed by an adequate and complete order thereon. Any orders entered after the orders reversed here which find the appellant in contempt for non-payment of alimony are hereby stayed pending final disposition of the order determining the question of modification.
REVERSED AND REMANDED.
ANSTEAD, J., concurs.
LETTS, J., concurring specially with opinion.
I completely agree with the majority opinion, yet I am apprehensive as to what will happen next. I have every sympathy for trial judges. They are on the firing line, we are not Moreover they see we appellate judges make many mistakes ourselves — with less excuse. Nevertheless one gets a feeling of hopelessness for the system when any trial judge ignores our directions and goes his own way. The obvious question is: Will he do it again? What will happen to the system?
Meanwhile this appellant spent 44 days in jail for a supposed contempt that this court had already ruled was not established as such, in an exactly parallel proceeding involving the same appellant in the same case before the same court.
The case was not before the same judge.
The wife argues that because the husband has purged himself of this particular contempt, he has rendered the matter moot. I do not agree. The issue here is whether the judge's order of contempt was proper. It was not and the root problem must be addressed for the contempt orders continue to multiply. We note the wife has even filed a motion to dismiss this cause predicated on subsequent unpurged contempt orders! Where will it end? I cannot forecast that; but the end can begin if the trial judge will follow the instructions of this court.