Weinberg v. Weinberg

137 So. 3d 600, 2014 WL 1795698, 2014 Fla. App. LEXIS 6722
CourtDistrict Court of Appeal of Florida
DecidedMay 7, 2014
DocketNo. 4D12-4188
StatusPublished
Cited by1 cases

This text of 137 So. 3d 600 (Weinberg v. Weinberg) 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
Weinberg v. Weinberg, 137 So. 3d 600, 2014 WL 1795698, 2014 Fla. App. LEXIS 6722 (Fla. Ct. App. 2014).

Opinion

MAY, J.

Beneficiaries of a trust appeal an order denying their request to enforce a $500 per diem contempt fine against a trustee for her non-compliance with multiple court orders. They argue the trial court erred in not enforcing the original contempt order, the trustee waived any defect in the original contempt order by not taking an appeal, and that the trial court erred in finding it did not have the authority to impose an alternative sanction. We agree with the beneficiaries in part and reverse.

The trustee is the successor to her husband, who created a revocable living trust to assist in facilitation of their assets. As trustee, she was tasked with distributing assets to her late husband’s biological sons from a previous marriage. Instead, upon her husband’s death, the trustee sought to revoke the trust.

The sons filed suit, alleging that the distributive portions of the trust became irrevocable upon their father’s death. The trial court agreed and entered a final summary judgment requiring the trustee to distribute half the trust assets to the sons. We affirmed that final judgment. Weinberg v. Weinberg, 975 So.2d 1152 (Fla. 4th DCA), rev. dismissed, 981 So.2d 1201 (Fla. 2008).

The trustee purportedly distributed half of the trust’s assets to the sons pursuant to a joint stipulation for release of monies. Concerned about whether this distribution included all of the assets due to them, the sons requested a full accounting as required by the final judgment. When the trustee failed to comply, the sons moved to compel a “full accounting, under oath.”

The trial court entered an agreed order requiring an accounting within thirty days. The trustee again failed to comply, causing the sons to move for contempt and sanctions. The trustee responded by filing a conclusory declaration of compliance.

The trial court then entered an order granting the sons’ motion for contempt and sanctions. Neither the trustee nor her attorney attended the hearing at which [602]*602this took place. In the order, the trial court instructed the trustee to provide a full accounting within five days, and failure to comply would result in a $500 per diem fine.

When the trustee did not comply, the sons moved for an order to show cause why the trustee should not be held in indirect criminal contempt. The trustee moved to vacate the original contempt order, arguing: (1) that the order was entered in the absence of her attorney, and (2) that she satisfied the accounting by filing the declaration and “a complete set of monthly brokerage account statements.” She also moved to disqualify the trial judge because the judge had stated to her attorney that she “was in danger of being put in jail for contempt of court.” The trial judge disqualified himself and the case was reassigned.

The new judge granted the sons’ motion for contempt and for sanctions, and again ordered the trustee to supply the accounting, but reserved jurisdiction concerning the $500 per diem penalty. The trustee appealed the portion of the contempt order that found she failed to perform the accounting. We affirmed. See Weinberg v. Weinberg, 75 So.Sd 746 (Fla. 4th DCA 2011).

The sons once again moved for contempt and sanctions. The new judge deferred ruling on the matter for 20 days to give the trustee another opportunity to comply. Once again, the trustee failed to do so, prompting another show cause order as to why the trustee “should not be held in contempt of court” for failing to provide an accounting.

The trustee responded by filing a sworn “First and Final Accounting of Trustee,” containing “a complete report of all cash and property transaction[s] and of all receipts and disbursement.” The report, however, was incomplete, and resulted in an order providing an additional 20 days for the trustee to amend her accounting to include the period from July 17, 2005, through September 21, 2005.

When the trustee failed to comply with that order, the sons again moved for contempt and sanctions. Rather than provide the accounting, the trustee moved to vacate the original contempt order. The new judge denied the trustee’s motion as untimely, and granted the sons’ motion for contempt and sanctions. The new judge deferred ruling on the specific sanctions until an evidentiary hearing could be conducted.

At this point, the trustee filed a supplemental accounting for the period of June 27, 2005, through October 14, 2008. The new judge found the supplemental accounting insufficient and ordered her to file an affidavit or other notarized document memorializing that the supplemental accounting “contains a full accounting of all assets titled in the name of the trust, and that no trust assets existed prior to June 27, 2005.”

Déjá vu, the trustee did not comply. The sons once again moved to hold the trustee in contempt. The new judge entered an omnibus order denying the sons’ contempt motions without prejudice to permit additional discovery.

The sons next moved for entry of a monetary sanctions award, pursuant to the original contempt order. By then, the accumulated fine had reached $215,000. The trustee retained new counsel, who filed a written response suggesting that the original contempt order was unenforceable due to the invalidity of the penalty provision. The trustee argued that the original contempt order indicated a finding of criminal contempt, but she had not been afforded procedural due process protection. If, however, the order had intended to oper[603]*603ate as a coercive civil contempt fíne, it was fatally flawed because the $500 per diem fine was not premised upon proof of the trustee’s financial resources. Alternatively, the trustee argued that, if the order’s purpose was to compensate the sons, there was no evidence of economic loss.

The new judge denied the sons’ motion. In the order, the new judge reasoned that she could not enter a final judgment on the original contempt order because the original trial judge did not hold a hearing or make any findings of fact regarding the trustee’s financial resources or the damages suffered by the sons. The new judge further found that none of the appeals had rendered the original contempt order final, leaving the issue under her control as an interlocutory order. The new judge denied the motion for rehearing.

On appeal, the sons argue that the new judge abused her discretion by failing to enforce the original contempt order. We review this order for an abuse of discretion. See DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005).

“To ensure the orderly administration of justice, Florida courts have the inherent power to hold parties in contempt for intentionally failing to obey a court order.” Rojo v. Rojo, 84 So.3d 1259,1261-62 (Fla. 3d DCA 2012) (citing § 38.22, Fla. Stat. (2010)). Such empowerment assists courts in “administering] public justice” and “enforcing] the rights of private litigants” by ensuring that judicial rulings serve more than a mere advisory role. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450, 31 S.Ct. 492, 55 L.Ed. 797 (1911) (citing Bessette v. W.B. Conkey Co., 194 U.S. 324, 337, 24 S.Ct. 665, 48 L.Ed. 997 (1904)). However, tethered to such broad-ranging power is the continued “obligation of restrained use and due process.” Moakley v. Smallwood,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

AUGUSTINE ABIDOSHI v. JOY ABIDOSHI
District Court of Appeal of Florida, 2021

Cite This Page — Counsel Stack

Bluebook (online)
137 So. 3d 600, 2014 WL 1795698, 2014 Fla. App. LEXIS 6722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinberg-v-weinberg-fladistctapp-2014.