DEPT. OF H & R SERV. v. Beckwith

624 So. 2d 395
CourtDistrict Court of Appeal of Florida
DecidedSeptember 24, 1993
Docket92-1721
StatusPublished

This text of 624 So. 2d 395 (DEPT. OF H & R SERV. v. Beckwith) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DEPT. OF H & R SERV. v. Beckwith, 624 So. 2d 395 (Fla. Ct. App. 1993).

Opinion

624 So.2d 395 (1993)

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., Appellant,
v.
Ralph S. BECKWITH, Appellee.

No. 92-1721.

District Court of Appeal of Florida, Fifth District.

September 24, 1993.

*396 Marcia K. Lippincott of Marcia K. Lippincott, P.A., and David R. Miller of David R. Miller, P.A., Orlando, for appellant.

B. Randall Griffiths, DeLand, for appellee.

PETERSON, Judge.

The Department of Health and Rehabilitative Services (HRS), on behalf of the former wife, Marsha Stephenson, appeals the trial court's May 4, 1992 Order of Modification of Final Judgment. The order vacated previously entered contempt orders against the former husband, Ralph S. Beckwith, and reduced the amount of his child support obligation. We affirm in part and reverse in part.

A final judgment of dissolution was entered on July 10, 1987, in which the former husband was ordered to make weekly child support payments of $67.50 for each of his two children and to maintain medical and life insurance. At that time his gross weekly earnings were $470.

The former husband later fell behind on his payments, and HRS petitioned on behalf of the former wife for an order of contempt. When the former husband failed to respond to an order to show cause, the trial court found him in contempt for willful failure to pay and ordered incarceration in the county jail for 60 days with a purge provision that, if he paid arrearages of $4,451, he would be released. On December 31, 1992, the contempt order was amended to allow the former husband to purge himself by paying $1000 immediately and another $1000 before March 1, 1992.

The former husband secured his release and petitioned for a modification of the final judgment, alleging a substantial change in his weekly income from $470 to $295. After a hearing on the petition, the trial court issued its order on May 5, 1992, finding that there had been a material and substantial change in the husband's ability to pay since his employment status had changed. The trial court reduced weekly support payments to $44.50 per child and eliminated the life insurance requirement. The medical insurance requirement was modified to require payment of $32 per month to maintain the children in a health program offered by the Volusia County school system. Finally, the order vacated all previously entered contempt orders, and payments toward the arrearage were abated until further order. The former wife moved for rehearing and included a request for an income deduction order to reflect the modified amount and arrearage. The motion was denied.

The former wife complains that the trial court erred by (1) vacating the prior contempt orders because the orders are res judicata and cannot be altered by modification; (2) failing to enter an income deduction order for both the modified amount of child support and the arrearage; and (3) awarding weekly child support of $44.50 per child rather than a total guidelines amount of $89 for two children.

MODIFYING CONTEMPT ORDERS

Whether a trial court has authority to withdraw and render void a previous civil contempt order or amendment to the order depends upon whether such an order may be classified as a final or a non-final order. The former wife would classify it as a final order and cites for support certain language in Department of Health and Rehabilitative *397 Services, Office of Child Support Enforcement v. Wood, 600 So.2d 1298, 1300 (Fla. 5th DCA 1992):

When a fact in issue or a cause of action has been finally decided by a court of competent jurisdiction, neither of the parties shall be allowed to relitigate so long as the judgment or decree stands unreversed. This principle applies to default judgments, issues raised in defense, and matters raised by motion. AGB Oil Co. v. Crystal Exploration and Production Co., 406 So.2d 1165 (Fla. 3d DCA 1981), rev. denied, 413 So.2d 875 (Fla. 1982). As to the particular motion for contempt and for determination of arrearage which prompted the 1990 order, the judge made a "final" decision — no other judicial labor remained to be done on that motion. The order, then, was res judicata as to the issues decided by it. Thompson v. Petherbridge, 472 So.2d 773 (Fla. 1st DCA 1985).

The sole issue raised in Wood was whether the trial court could adjust the amount of the arrearage which had been set in a previous order entered after a hearing on a contempt motion. While this court indicated that the order on the motion for contempt, coupled with a determination of arrearage, was a final decision, this court did not rule that every order of contempt is a final order not subject to later vacation or modification. This court held that the finding of the amount of the arrearage was res judicata when the husband failed to appeal. Whether the portion of the order resulting from the motion for contempt could be modified or vacated was not raised as an issue.

Because of its very nature, a civil contempt order that imposes incarceration must be subject to revocation or modification by the trial court after imposition. The order imposes penalties the execution of which are conditioned upon satisfaction of purge provisions that are monitored by or brought to the attention of the imposing court. When imprisonment is ordered for civil contempt, the punishment is ordered to induce compliance with valid orders of the trial court. The sentence can be terminated by the court upon compliance or even partial compliance. See Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla. 1956). The trial court must continue to have jurisdiction so that the incarcerated person may be set free upon compliance with the contempt order, or perhaps to modify the order in the event that partial compliance justifies modification. Elimination of that authority as is suggested by the appellant would adversely affect the support enforcement system.

Florida courts have recognized that a civil contempt order is interlocutory. Petition of Campbell, 72 So.2d 59 (Fla. 1954). The Fourth District has ruled specifically that an order of civil contempt is reviewable as a non-final order under rule 9.130(a)(3)(C), Florida Rules of Appellate Procedure. Continental Cas. Co. v. Morgan, 445 So.2d 678 (Fla. 4th DCA 1984); Langbert v. Langbert, 409 So.2d 1066 (Fla. 4th DCA 1981). The Third District in Stewart v. Mussoline, 487 So.2d 96 (Fla. 3d DCA 1986), declined to follow the Fourth District cases cited above, but found that the court has jurisdiction to review (apparently non-final) action holding one in contempt by way of certiorari. None of these cases holds that an order entered on a motion for civil contempt is appealable as a final order. This district has previously entertained appeals of orders finding the payor former spouse to be in civil contempt for failure to pay child support, but none of the opinions in those cases discuss the rule of appellate procedure authorizing the review, e.g., Miller v. Miller, 587 So.2d 601 (Fla. 5th DCA 1991); Pope v. McKee, 565 So.2d 785 (Fla. 5th DCA 1990); Upchurch v. Upchurch, 418 So.2d 373 (Fla. 5th DCA 1982).

We hold that a civil contempt order imposing incarceration as an inducement to performance of the act required by the trial court entered pursuant to a post-dissolution support enforcement proceeding is reviewable as a non-final order entered after a final order pursuant to rule 9.130(a)(4), Florida Rules of Appellate Procedure. The order, being non-final, does not constitute an order that is res judicata

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Department of Health & Rehabilitative Services v. Beckwith
624 So. 2d 395 (District Court of Appeal of Florida, 1993)

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624 So. 2d 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dept-of-h-r-serv-v-beckwith-fladistctapp-1993.