Posted by Nydia Streets of Streets Law in Florida Divorce

Say a party was ordered to pay alimony as part of a marital settlement agreement which also awarded joint ownership of the marital residence to both spouses. After the final judgment is entered, the party who is supposed to pay alimony falls behind on his payments and the other party files a motion for contempt. Can the court award the marital residence to the other spouse as punishment for the paying spouse’s failure to pay a large sum of alimony? This question was answered in the recent appellate case Frank v. Frank, 4D17-2201 (Fla. 4th DCA 2018).

A final judgment was entered in 1999 which incorporated a marital settlement agreement entered between the spouses. The appellant provided 12 post-dated checks for alimony to the appellee because the appellant was going on a sailing trip. When the first check bounced, the appellee filed a motion for contempt and served the appellant via mail, fax and e-mail, and also published notice of the action. At a hearing on the motion for contempt, the appellee testified she had not paid the mortgage on the parties’ joint residence, having not received alimony payments for eight months.

The trial court found the appellant in contempt, awarded the marital residence in full to the appellee and ordered a purge payment which was later made by the appellant. An appeal followed in which the appellant argued (1) service by publication was defective because the notice did not include a legal description of the home and (2) the court was without jurisdiction to award the home to the appellee because it could not modify the property provisions of the final judgment.

As to the argument regarding improper service, the appellate court disagreed with the appellant, holding it was not necessary for the appellee to provide formal service to the appellant of the motion for contempt. It was satisfactory for the appellee to mail the motion to the appellant, which she did in addition to attempting to serve by publication. Therefore, although the notice of publication did not contain a sufficient description of the property, this was of no consequence since the motion was properly served by other means.

The appellate court agreed with the appellant on the issue of ownership of the house, holding “While courts have broad discretion to fashion creative contempt sanctions to enforce a judgment, the contempt power is not limitless and "[t]he law is well-settled that contempt does not lie to enforce a property settlement arising out of a dissolution of marriage." Byrne v. Byrne, 133 So. 3d 1082, 1084 (Fla. 4th DCA 2014). The court erred when it transferred the residence in the contempt order because the final judgment determined those rights.”

This case illustrates how technical rules may undo an order that on the surface seems correct. Schedule a consultation with a Miami divorce lawyer to learn about your rights and remedies when it comes to all aspects of your Florida family law case.