Posted by Nydia Streets of Streets Law in Florida Alimony

A party’s failure to pay court-ordered alimony may subject that party to contempt of court. This also applies to the obligation to maintain a life insurance policy to secure an alimony award. What happens if a party who is in contempt cures the non-compliance before a hearing - is the issue of contempt now moot? This was the subject of the case Herce v. Maines, 2D19-3174 (Fla. 2d DCA March 12, 2021).

As part of their final judgment of divorce, the former husband was ordered to pay the former wife $3,500.00 per month in alimony and to maintain a life insurance policy. He was further ordered to provide proof of the insurance coverage to the former wife annually. The former wife filed a motion for contempt, alleging the former husband had not paid alimony and that he did not provide the proof of insurance. The former husband paid the alimony, but the dispute over the insurance proof continued. Finally the former husband provided a letter to the former wife from the insurance company indicating she was the beneficiary of a $150,000 policy or the entire policy proceeds, if less. The former wife issued a subpoena to the life insurance policy and obtained his policy file indicating more than $150,000 was available in the policy. Despite this, a contempt hearing proceeded.

A hearing was held before the general magistrate, and the magistrate found that the former husband was in contempt, but that no purge was necessary because the former husband had already complied. The judge reviewing the report determined the former husband complied with the obligation to provide the insurance proof before the hearing, and therefore there could be no contempt. The former wife’s motion for contempt was therefore dismissed as moot. The former wife filed a motion for rehearing, and the judge reaffirmed her ruling but reserved on the issue of attorney’s fees. The former wife did not appeal the denial of her rehearing motion.

A hearing proceeded on the issue of attorney’s fees and the general magistrate found the former husband provided proof of the insurance prior to the hearing on contempt, and that the former wife obtained proof on her own. The magistrate further held any fees incurred by the former wife after she obtained the proof on her own were unreasonable. At a hearing on exceptions to the general magistrate’s report, a new judge disagreed with the prior judge’s ruling that the contempt should be dismissed - she felt the former husband was in contempt because he had not provided the proof of coverage prior to the hearing. The new judge found the former wife should not have to pay her own attorney’s fees when she demonstrated a need and the former husband had the ability to pay, and because the former husband had not cured the contempt himself. Therefore, the former husband was ordered to pay the former wife’s fees even beyond the date the former wife obtained proof of the life insurance coverage. The former husband appealed.

The appellate court noted the prior judge’s ruling as to dismissal of the contempt was final since it had not been appealed. Therefore, the new judge had no authority to modify it. The court held “As for attorney's fees, the GM properly considered the evidence, applied [the prior judge’s] findings, and analyzed the law to conclude that fees after April 3, 2014, were unreasonable. The GM found that the Former Wife was entitled to fees expended to secure the Former Husband's compliance. [internal citations omitted]. Once the Former Husband complied, the Former Wife's insistence on contempt was moot, as [the prior judge] found. [internal citation omitted] The Former Wife incurred fees over a fight that was over; fees that her counsel conceded were ‘too large,’ ‘huge,’ ‘ridiculous,’ and ‘outrageous.’”

The court concluded “The trial court overstepped its bounds to the extent that the order before us purported to overturn [the prior judge’s] mootness ruling. [internal citation omitted]. Moreover, the trial court's limited role did not permit it to reject the GM's factual findings that were supported by the evidence. [internal citation omitted]. Nor could the trial court substitute its judgment for that of the GM where the GM did not misconceive the law or commit error in recommending the partial denial of attorney's fees and costs.”

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