FAMILY LAW: CONTEMPT: FORMER HUSBAND’S FAILURE TO COMPLY WITH ORDER TO TURN OVER DOG TO FORMER WIFE AND FAILURE TO APPEAR AT HEARING ON WIFE’S MOTION FOR CONTEMPT: DIRECT CRIMINAL CONTEMPT: ABSENCE OF EVIDENCE THAT DEFENDANT HAD NOTICE OF THE ORDER TO APPEAR OR HIS REASONS FOR FAILURE TO COMPLY: DOUBLE JEOPARDY: EVIDENTIARY INSUFFICIENCY BARS REMAND FOR FURTHER CONSIDERATION OF FORMER HUSBAND’S CONTEMPT; APPEALS: CERTIFIED QUESTION OF GREAT PUBLIC IMPORTANCE: SHOULD FAILURE TO COMPLY WITH ORDER TO APPEAR AT HEARING BE TREATED AS DIRECT OR INDIRECT CRIMINAL CONTEMPT  

de la Portilla v. State, ___ So. 3d ___, 39 Fla. L. Weekly D1457 (Fla. 1st DCA July 14, 2014)

When the former husband failed to comply with a court order to turn over a dog to the former wife, she filed a motion for contempt, and the first trial judge issued an order compelling the former husband to appear and show cause why the motion should not be granted.  The trial judge recused himself, a successor judge was appointed, a new hearing was scheduled, and the former husband failed to appear.  The successor judge held the former husband in civil contempt for failing to comply with the predecessor judge’s order and ordered the former husband to be committed to the county jail for thirty days if he failed to turn over the dog within thirty-three days.  The former husband filed a notice of appeal.  When the former husband failed to comply with the successor judge’s order, the wife filed another motion for contempt and served it upon the former husband’s lawyer.  The former husband, without any explanation, appeared solely through counsel at the hearing on the wife’s motion.  As a result, the judge held the former husband in civil contempt for failing to turn over the dog and for direct criminal contempt for failing to appear.  The judge imposed concurrent jail sentences of five months and twenty-nine days for both offenses.  Even though the parties subsequently entered into a settlement that entitled the husband to keep the dog, the trial court refused to drop the criminal contempt sanction.   The appellate court “h[e]ld that the trial judge was entitled to apply principles of direct criminal contempt” but erred by imposing this sanction without evidence that “[the former husband] was notified personally of the trial court’s order and, if so, his reasons for not appearing . . . .”  Furthermore, because this error was based upon evidentiary insufficiency, the Double Jeopardy Clauses of the United States Constitution precluded “remand without prejudice to further proceedings.”  The court certified to the Florida Supreme Court as a question of great public importance whether the failure to comply with an order to appear for a hearing should be treated as direct or indirect criminal contempt of court and recommended that “criminal contempt hearings be held separately from the civil proceedings” in which the defendant failed to appear.  The court also requested “clearer guidance” on the application of the Double Jeopardy Clauses to criminal contempt sanctions.