Opinion
1D22-2208
09-27-2023
James F. Howard, Petitioner, v. Vanessa Howard, Respondent.
James F. Howard, pro se, Petitioner. Laura E. Keene of Beroset Keene, Pensacola, for Respondent.
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
Petition for Writ of Certiorari-Original Jurisdiction. Gary L Bergosh, Judge.
James F. Howard, pro se, Petitioner.
Laura E. Keene of Beroset Keene, Pensacola, for Respondent.
PER CURIAM.
DISMISSED.
ROBERTS and LONG, JJ., concur; TANENBAUM, J., concurs with opinion.
TANENBAUM, J., concurring.
James Howard petitions this court for certiorari review of an order finding him in contempt for noncompliance with a prior order that had directed him to vacate a marital property. Indeed, the writ is his only option for seeking our review at this juncture because the order is not directly appealable, either as an enumerated non-final order or a final order. See Art. V, § 4(b)(1), Fla. Const. It surely could not be appealable as a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). That rule gives us jurisdiction to hear an appeal from a non-final order that determines a "right to immediate possession of property." The order before us does no such thing. By contrast, the prior order, from a year ago, granted temporary relief to Vanessa Howard by giving her exclusive use and possession of the parties' rental property. That was the order that established Vanessa's right to possess the property. That order was the one appealable immediately under the same rule we are talking about here, but James did not seek such review then and cannot do so now.
The order we have before us also is not a final order. To be sure, this order finds James to be in willful contempt for not vacating the parties' rental property, as he had been ordered to do. The order, though, does not adjudicate James as being in criminal contempt: It did not impose "a fixed sentence of imprisonment . . . for a completed act of disobedience." Parisi v. Broward County, 769 So.2d 359, 365 (Fla. 2000) (internal quotation and citation omitted). Instead, the order focuses on obtaining James's compliance with the prior temporary possession order, threatening him with 179 days in jail if he did not vacate the property. This order clearly is a civil contempt order. See Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla. 1985) (explaining that "the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court," so incarceration "must be used only when the contemnor has the ability to comply"); Parisi, 769 So.2d at 365 (distinguishing civil and criminal contempt orders based on the presence of a "purge provision," such that if incarceration is used as a coercive sanction, allowing the "contemnor to carry the keys of his prison in his own pocket," the contempt is civil (internal quotations and citation omitted)). This civil contempt order cannot be a final order because it does not alter any legal status, does not adjudicate any rights as between the parties, and does not conclusively resolve any dispute between the parties. See Jessup v. Werner, 354 So.3d 605, 609 (Fla. 1st DCA 2022) (citing opinions that discuss the matter further). This type of order-basically, a civil enforcement order-also is not enumerated as an appealable non-final order. Cf. Erskine v. Erskine, 344 So.3d 566, 570-71 (Fla. 1st DCA 2022). If the challenged order is neither a final order nor an enumerated nonfinal order, we have no jurisdiction to review it on direct appeal.
That leaves certiorari, but the petition is subject to dismissal because it fails to set forth a basis for relief. As it turns out, according to the petition, the trial court's threat of jail worked: James left the property shortly after the contempt order was entered. As I already noted, the order finds James to be in civil, not criminal, contempt. The order having achieved its purpose, it has no residual effect on James's legal status or rights, or his legal relationship with Vanessa. See Malone v. Malone, Case No. 1D21-2133, 2023 WL 5090711, at *2 (Fla. 1st DCA Aug. 9, 2023) (Tanenbaum, J., concurring) (addressing mootness in the context of collateral consequences of an adjudication affecting the parties' relative legal status, relationship, or rights). The only relief we could grant here-quashal of the contempt order-would have no legal effect now that the order has run its course. That is the essence of mootness, which warrants dismissal of the petition. See DeHoff v. Imeson, 15 So.2d 258, 259 (Fla. 1943) (explaining that "an appeal should be dismissed where no practical result could be attained by reviewing the questions therein contained" and when an appellate determination would not "affect the rights of the parties as they stand at the time the case is reviewed"); see also Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (explaining that a case is "moot" when it presents no actual controversy or when the issues have ceased to exist).