Posted by Nydia Streets of Streets Law in Florida Family Law Procedure
Criminal penalties can sometimes be levied in Florida family law cases. These are usually the result of indirect criminal contempt proceedings. How is a request for attorney’s fees and costs determined in indirect criminal contempt proceedings in a Florida family law case? This was an issue in Burlinson v. Wilson, 4D2023-0464 (Fla. 4th DCA June 5 2024).
In this case involving child custody issues, the mother was found to be in indirect criminal contempt of an order for time-sharing. The mother appealed the finding of contempt, as well as prosecution costs and attorney’s fees awarded to the father. The appellate court affirmed the finding of contempt, but reversed on the award of prosecution costs and attorney’s fees which were a condition of her probation sentence.
As to prosecution costs, the court reversed, holding “[T]he record reflects that appellee’s counsel prosecuted Defendant for indirect criminal contempt, not the state. In fact, as represented in the state’s motion to be removed as a party in this appeal, ‘the State Attorney’s Office for the Nineteenth Judicial Circuit was not appointed to prosecute the contempt charge.’ As such, the trial court could not impose costs of prosecution in this case. See § 938.27(8), Fla. Stat. (2023) (‘Costs for the state attorney must be set in all cases at no less than $50 per case when a misdemeanor or criminal traffic offense is charged and no less than $100 per case when a felony offense is charged . . . .’ (emphasis added)); see also Leyritz v. State, 93 So. 3d 1156, 1158 (Fla. 4th DCA 2012) (recognizing that the purpose of prosecution costs is ‘to compensate the state for the expenses of prosecution associated with individual violations’ (emphasis added) (citation omitted)).”
Turning to the award of attorney’s fees to the father, the appellate court reversed, holding “Regarding the requirement that Defendant, as a condition of probation, pay $1,983.20 in attorney’s fees to appellee’s counsel, such a condition is not authorized in indirect criminal contempt proceedings. See Routh v. Routh, 565 So. 2d 709, 710 (Fla. 5th DCA 1990) (holding that the trial court could not award attorney’s fees to the wife’s attorney who prosecuted the husband for indirect criminal contempt because ‘a judgment of guilt of criminal contempt should . . . not inure to the benefit of a private individual’) [. . .].”
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