Posted by Nydia Streets of Streets Law in Florida Family Law Procedure

When a party faces a criminal contempt proceeding in a Florida family law case, that party may be subject to penalties that include jail time. Because of this, procedure must be followed very carefully to ensure a person has a fair trial. Fairness includes being able to call witnesses in a party’s defense. This was an issue in the case Willey v. Stillman, 5D20-1636 (Fla. 5th DCA December 3, 2021).

The mother in the underlying case was on trial for indirect criminal contempt. Indirect criminal contempt concerns conduct of a party that occurs outside the presence of the court. The appellate opinion does not detail what the mother was accused of doing, but she tried to call her 13-year-old son as an exculpatory witness. The court excluded the son as a witness because it reasoned it did not want him to take sides between the parents. However, the mother proffered that the son’s testimony was directly relevant to whether or not she disobeyed the order at issue. The mother appealed after she was found guilty of indirect criminal contempt.

The appellate court reversed, holding “‘An indirect criminal contempt proceeding must fully comply with rule 3.840, Florida Rules of Criminal Procedure, and defendants are entitled to the appropriate due process protections . . . .’ Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla. 1985). Therefore, ‘[t]he defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and testify in his or her own defense.’ Fla. R. Crim. P. 3.840(d); see also Baumgartner v. Joughin, 141 So. 185, 187 (Fla. 1932) (explaining that the accused is entitled to the “assistance of counsel, if requested, and the right to call witnesses to give testimony”). Given our record, we conclude that the exclusion of [the] son as a witness violated rule 3.840. We therefore reverse the indirect criminal contempt order and remand for a new hearing on that issue.”

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