Dahlmeier, Frederick M.

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University of Florida Levin College of Law

Florida Law Review Volume 23 Issue 4 Article 8 June 1971 Contempt: Abatement of Purpose as a Defense in Civil Proceedings Frederick M. Dahlmeier Follow this and additional works at: https://scholarship.law.ufl.edu/flr  Part of the Law Commons Recommended Citation Frederick M. Dahlmeier, Contempt: Abatement of Purpose as a Defense in Civil Proceedings, 23 Fla. L. Rev. 792 (1971). Available at: https://scholarship.law.ufl.edu/flr/vol23/iss4/8 This Case Comment is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized editor of UF Law Scholarship Repository. For more information, please contact kaleita@law.ufl.edu. UNIVERSITY OF FLORIDA LAW REVIEWCONTEMPT: ABATEMENT OF PURPOSE AS A DEFENSE INCIVIL PROCEEDINGSWilkes v. Revels, 245 So. 2d 896 (lst D.C.A. Fla. 1970)On January 7, 1964, petitioner was ordered by respondent to show causewhy he should not be held in contempt for noncompliance with a court orderto make child support payments. When he failed to appear to adjudicate thedirective, a warrant of attachment for contempt was issued. Petitioner wastaken into custody in May 1966, and he subsequently moved to quash thewarrant because the children had reached age twenty-one. The motion wasdenied and a hearing set on the order. Prior to the hearing, however, pe-titioner and his former wife executed a stipulation of settlement that wasincorporated into an order entered by the circuit court on May 21, 1908.Petitioner failed to comply with the order of May 21 and, on motion by hisformer wife, the court issued an order directing him to show cause why heshould not be held in contempt. Petitioner then filed a suggestion for awrit of prohibition to restrain respondent from proceeding with the contemptaction. The petitioner contended that when the children attained their ma-jority, the circuit court lost subject matter jurisdiction to utilize its contemptpower to enforce child support payments. The First District Court of Appealgranted the writ and HELD, a court loses subject matter jurisdiction to hearcontempt proceedings after the children reach majority because the purposeand justifitation for the remedy have expired."Contempt proceedings have long been utilized in Florida to enforce sup-port orders for minors,2 the delinquent father being allowed to purge himselfof his contempt by paying the arrearages.3 The issue of whether contempt pro-ceedings are a proper remedy after the children reach majority, however, isone of first impression in Florida and there are few cases on point in otherjurisdictions. Two landmark decisions by the Oklahoma supreme court pro-vide the basis for most foreign decisions recognizing abatement of purpose asa defense to contempt proceedings arising from child support cases. In thefirst, McCartney v. Superior Court,5 the court held its jurisdiction to punisha default in support payments by contempt was derived from the Oklahomadivorce statute.6 Since the divorce statute provided only for orders concerningminor children, the Oklahoma court ruled as a matter of law that its juris-diction to enforce the orders by punishment for contempt terminated whenthe children reached majority.71. 245 So. 2d 896, 898 (1st D.CA. Fla. 1970), cert. denied, 247 So. 2d 437 (Fla. 1971).2. E.g., Dykes v. Dykes, 104 So. 2d 598, 600 (3d D.CA. Fla. 1958).3. "[T]he accused carries the keys of his prison in his pocket." In re S.L.T., 180 So. 2d874, 879 (2d D.C.A. Fla. 1965).4. 245 So. 2d 896, 897 (Ist D.CA. Fla. 1970), cert. denied, 247 So. 2d 437 (Fla. 1971).5. 187 Okla. 63, 101 P.2d 245 (1940).6. OKLA. STAT. ANN. tit. 12, §1277 (1961). The statute provides that when a divorce isgranted "the court shall make provision for guardianship, custody, support and educa-tion of the minor children ....7. McCartney v. Superior Court, 187 Okla. 68, 101 P.2d 245 (1940). The court re-[Vol. XXMI1Dahlmeier: Contempt: Abatement of Purpose as a Defense in Civil ProceedingsPublished by UF Law Scholarship Repository, 1971COMMENTSAfter McCartney the case of Lowry v. Lowry8 established the position ofthe Oklahoma court even more dearly. There, the court indicated that theproper remedy to enforce a child support order was civil contempt since civilcontempt proceedings were "for the private benefit of a party or for the solepurpose of coercing the payment of money to a private individual."9 Incases involving child support payments, the court found the purpose of civilcontempt to be protection of minor children. Reasoning that since civilcontempt proceedings terminate when the purpose is abated, the court heldjurisdiction to enforce child support payments through contempt proceedingswas lost when the children reached majority.1 0 The reasoning of the Okla-homa court in Lowry has been adopted in virtually every jurisdiction, in-cluding Florida, which refuses to allow contempt proceedings to enforce childsupport payments after the child reaches majority."Some jurisdictions have refused to follow this reasoning. 2 In State ex tel.Casey v. Casey's the trial court issued an order to show cause why the de-fendant should not be held in contempt for failure to make child supportpayments in compliance with an earlier directive. The defendant filed anaffidavit stating that subsequent to the entry of the earlier orderrequiring him to contribute to the support of his children, all the childrenhad reached majority. Notwithstanding his affidavit, the trial court foundhim guilty of contempt. The Oregon supreme court affirmed14 basing its de-cision solely on the state's criminal contempt statute, which contained anexpress provision allowing contempt proceedings to enforce the payment ofalimony.1 Thus, Casey and Lowry are readily distinguishable. Lowry ex-plidly stated that the nature of the contempt was civil; 16 whereas, the Caseycourt termed the contempt criminal.17 The primary purpose of the criminalcontempt proceedings in Casey was not the protection of minor children butthe punishment of a disrespectful defendant. s When the defendant failedjected the contention that jurisdiction continued to allow the court to coerce paymentsthat became due prior to the child's reaching age twenty-one.8. 189 Okla. 650, 118 P.2d 1015 (1941).9. Id. at 651, 118 P.2d at 1016.10. To obtain relief, the wife must institute a separate proceeding in which the balancedue may be determined and execution issued. Id. at 652, 118 P.2d at 1016.11. Corbridge v. Corbridge, 230 Ind. 206, 102 N.E.2d 764 (1952); Leider v. Straub, 2,0Minn. 460, 42 N.W.2d 11 (1950); Sides v. Pittman, 167 Miss. 751, 150 So. 211 (193); Dawsonv. Dawson, 71 Wash. 2d 66, 426 P.2d 614 (1967); Halmu v. Halmu, 247 Wisc. 124, 19 N.W.2d317 (1945).12. See, e.g., State ex rel. Casey v. Casey, 175 Ore. 828, 153 P.2d 700 (1944).13. Id.14. Id.15, 2 ORE. CoMP. LAws ANN. §11-501 (1940) provides: "The following acts or omissions,in respect to a court of justice, or proceeding therein, are deemed to be contempts of theauthority of the court .... Disobedience of any lawful judgment, decree, order, or pro-cess of the court, including judgments, orders, and decrees for payment of suit money,alimony .... "16. 189 Okla. 650, 651, 118 P.2d 1015, 1016 (1941).17. 175 Ore. 528, 386, 153 P.2d 700, 702 (1944).18. Id. at 387, 153 P.2d at 708; see Demetree v. State, 89 So. 2d 498, 501 (Fla. 1956)2Florida Law Review, Vol. 23, Iss. 4 [1971], Art. 8https://scholarship.law.ufl.edu/flr/vol23/iss4/8UNIVERSITY OF FLORIDA LAW REVIEWto comply with the court order he was guilty of criminal contempt and thechildren's reaching majority had no effect on his unlawful conduct.19 Civilcontempt, on the other hand, is remedial, in nature and the proceedings areabated when the justification for the remedy no longer exists.20While the Oregon court invoked a criminal contempt statute to affirma conviction after the children reached majority, the Texas supreme court inEx parte Hooks21 used a statute22 conferring civil contempt power upon thecourt in child support cases to obtain the same result. In Hooks thecourt held its power to order child support payments terminated when thechild became eighteen, but that its contempt power, under the enforcementprovision, did not terminate but continued beyond age eighteen. Thus, thestatute was interpreted as granting Texas courts a continuing power to en-force child support orders in addition to the inherent power (which termin-ates with the power to order payment of child support) recognized by theOklahoma court in Lowry.23The instant case, quoting directly from Lowry, adopts the reasoning ofthe Oklahoma court and reaches the same result.2' An analysis of the Lowryrationale begins with the court's jurisdiction to issue child support orders.This jurisdiction is given Florida courts by Florida Statutes, section 61.13.25Florida courts have consistently held that the statute applies only to minorchildren 6 and that the nature of contempt proceedings to enforce child sup-port orders is civil.27 Florida courts have also stated that an order for childwhere the court states: "[A] contempt proceeding criminal in nature is instituted solely andsimply to vindicate the authority of the court or otherwise punish for conduct offensive tothe public in violation of an order of the court."19. State ex rel. Casey v. Casey, 175 Ore. 328, 337, 153 P.2d 700, 703 (1944).20. In civil contempt proceedings the complainant is the real party in interest withrespect to a remedial order. The court lends its contempt power to give the complainantan effective remedy. If the complainant becomes disentitled to further benefit of suchorder the civil contempt proceedings must be terminated. Harris v. Texas & Pac. Ry., 196F.2d 88, 90 (7th Cir. 1952); Parker v. United States, 153 F.2d 66, 71 (1st Cir. 1946).21. 415 S.W.2d 166 (Tex. 1967).22. Tax. REV. Civ. STAT. ANN. art. 4639a (1960) provides: "[A]nd said court may byjudgment, order either parent to make periodical payments for the benefit of such child orchildren, until same have reached the age of eighteen (18) years, or said court may entera judgment in a fixed amount for the support of such child or children, and such courtshall have full power and authority to enforce said judgments by civil contempt proceed-ings after ten (10) days notice to such parent of his or her failure or refusal to carry outthe terms thereof .... "23. 415 S.W.2d 166, 168 (Tex. 1967).24. 245 So. 2d 896, 898 (lst D.C.A. Fla. 1970, cert. denied, 247 So. 2d 437 (Fla. 1971).25. FLA. STAT. §61.13 (1969) provides: "In any action for divorce or alimony, the courthas power at any stage of the action to make such orders about the care, custody andmaintenance of the children of the marriage, and what security, if any, is to be giventherefor, as from the circumstances of the parties and the nature of the case is equitable."26. E.g., Bezanilla v. Bezanilla, 65 So. 2d 754, 756 (Fla. 1953); Perla v. Perla, 58 So. 2d689, 690 (Fla. 1952); Riley v. Riley, 131 So. 2d 491, 492 (1st D.C.A. Fla. 1961).27. E.g., Ducksworth v. Boyer, 125 So. 2d 844, 845 (Fla. 1960); State ex rel. Byrd v.Anderson, 168 So. 2d 554, 556 (1st D.C.A. Fla. 1964); Dykes v. Dykes, 104 So. 2d 598, 600(3d D.C.A. Fla. 1958).(Vol. XXI3Dahlmeier: Contempt: Abatement of Purpose as a Defense in Civil ProceedingsPublished by UF Law Scholarship Repository, 1971COMMENTSsupport is primarily for the benefit of the minor children.2  Thus, thepremises upon which the Lowry conclusion is based are all present in Florida,and the result that it requires seems consonant with existing public policy.29Despite the desirability of the Lowry rationale, its applicability to thefacts of the instant case seems questionable in light of the jurisdictionalproblems posed. It is axiomatic that a court without jurisdiction to issue anorder is without jurisdiction to enforce that order by contempt.30 The issue ofwhether the court had jurisdiction to enter the original order to pay childsupport did not arise in Lowry nor in the cases relying upon it.31 The instantdecision differs, however, in that the order leading to the contempt citationwas issued after the children reached their majority. In addition, the Floridachild support statute has been interpreted to prohibit original orders forchild support after the children reach their majority.32 Viewed in this manner,the order incorporating the settlement agreement was invalidly issued; thus,the court was without jurisdiction to enforce it.33The instant opinion implies that the respondent countered the jurisdic-tional argument by contending that even if the court did not have jurisdictionto enter the order of settlement, the petitioner should be held in contemptfor failure to comply with the order of January 7, 1964, which was issued priorto either child reaching majority.34 The court, however, found the 1964 ordercancelled by the later order incorporating the settlement agreement. Thisfinding was based upon the theory that where remedial relief is to begranted by civil contempt, contempt proceedings terminate with a settlement28. See City of Jacksonville v. Jones, 213 So. 2d 259 (1st D.CA. Fla. 1968).29. It has been argued that since unpaid child support constitutes a debt, contemptcitations and resulting imprisonment for failure to make payments violates the consti-tutional prohibition against imprisonment for debt. FLA. CONsT. art. I, §11. This argumenthas been rejected by the Florida supreme court, State ex rel. Krueger v. Stone, 137 Fla.498, 499, 188 So. 575, 576 (1939).30. State ex rel. Everette v. Peheway, 131 Fla. 516, 527, 179 So. 666, 671 (1938).31. In these cases the order to pay child support was based on the final judgment ofdivorce. In all instances, the orders were made prior to the children's majority. There wasno reason to question the court's jurisdiction to issue the order since the statutes specificallygranted the courts power to make orders for the support of minor children.32. Bezanilla v. Bezanilla, 65 So. 2d 754, 756 (Fla. 1953); Perla v. Perla, 58 So. 2d689, 690 (Fla. 1952); Riley v. Riley, 131 So. 2d 491, 492 (1st D.CA. Fla. 1961).33. Notwithstanding the court's lack of jurisdiction to enter orders concerning pay-ment of child support, the court had jurisdiction to enter a lump sum judgment for theamount of child support in arrears since the arrearages constitute a debt that can becollected by garnishment, attachment, or execution. Thompson v. Thompson, 142 Fla. 643,645, 195 So. 571, 572 (1940); Pottinger v. Pottinger, 133 Fla. 442, 446, 182 So. 762, 763(1938); Boyle v. Boyle, 194 So. 2d 64, 66 (3d D.C.A. Fla. 1967). In Halmu v. Halmu, 247 Wis.124, 19 N.W.2d 317 (1945) the husband was in arrears for child support payments accruedbefore the children reached majority. The wife sought to have the husband held incontempt but the court, following the rationale of Lowry, refused such an order. Thecourt did, however, affirm the entry of a lump sum judgment by the lower court. In Smithv. Smith, 168 Ohio St. 447, 453, 156 N.E.2d 113, 118 (1959), the court held it was simplya matter of mathematically calculating the amount due the wife and entering a judgmentfor that amount.34. 245 So. 2d 896, 898 (1st D.CA. Fla, 1970), cert, &nied, 247 So. 2d 437 (Fla. 1971).4Florida Law Review, Vol. 23, Iss. 4 [1971], Art. 8https://scholarship.law.ufl.edu/flr/vol23/iss4/8

Contempt: Abatement of Purpose as a Defense in Civil Proceedings

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Contempt: Abatement of Purpose as a Defense in Civil Proceedings

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