Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
In what was likely a hotly contested post-judgment child custody modification case in Florida, a non-party was held in contempt and sentenced to jail time for violating the court’s order “to keep any information about the case off social media and to prevent family members from publishing information about the custody action on social media.” That non-party appealed which formed the basis for the recently published appellate opinion In re Contempt Adjudication of Weiner, 2D19-1413 (Fla. 2d DCA August 7, 2019).
The father’s wife allegedly posted information about the child custody case on social media which included statements that were critical of the judge. As a result the judge issued a show cause order requiring the wife to appear in court and explain why she should not be held in contempt of the court’s order regarding social media. The wife received the notice of the hearing one day before it was set to occur. An attorney she hired the same day of the hearing appeared on her behalf and argued the order should be dismissed because the wife was not a party to the case and therefore not subject to the order, the hearing should be continued because the wife did not have adequate notice and opportunity to prepare for the same, and the judge should recuse herself because the allegations underlying the alleged contempt concerned criticism of the judge. The judge denied these oral motions, found the wife guilty of indirect criminal contempt and sentenced her to five months in jail.
To challenge the judge’s decision, the wife filed a petition for habeas corpus with the appellate court. This petition challenges a court’s authority to detain a person. The wife’s petition was granted with the appellate court holding “First, the order to show cause violated Ms. Weiner's due process rights because she was not subject to or served with the court order that she was accused of disobeying. ‘For a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order.’ Reder v. Miller, 102 So. 3d 742, 743 (Fla. 2d DCA 2012) (quoting Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992)) [. . .] Second, the order to show cause was not served on [the wife] within a ‘reasonable time allowed for preparation of the defense,’ as required by Florida Rule of Criminal Procedure 3.840(a). [The wife’s] name did not appear in the order's service list, and it is undisputed that she received the order the day before the hearing and did not engage counsel until the morning of the hearing. [. . .] Finally, the trial judge should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge. Rule 3.840(e) provides that a trial judge must disqualify herself if the charged contempt "involves disrespect to or criticism of" the judge. ‘[T]he purpose of the rule is to assure that a person cited for a contempt of court which involved a criticism of a judge, would not be tried on the contempt charge before the judge who was the subject of the criticism.’”
Unfortunately, the wife likely spent at least 30 days in jail as she awaited a decision on her petition. Contact a Miami family law attorney to discuss your case and understand your procedural rights.