LYNN M. PERSOFF, APPELLANT,
v.
MYRON M. PERSOFF, ET AL., APPELLEES
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Lynn Persoff appeals her conviction for indirect criminal contempt for violating a 1988 order prohibiting derogatory remarks about her ex-husband. The Fourth District affirms the contempt finding, rejecting her procedural challenges and factual disputes.
The court affirmed the contempt conviction. Although failure to comply with Rule 3.840 constitutes fundamental error, the ex-wife's affirmative waiver of this requirement precluded her from claiming prejudice. The trial court's factual finding that the ex-wife made the derogatory statements was not clearly erroneous. The ex-wife's collateral attack on the underlying 1988 contempt order was improper and uncompelling.
[1] A party may waive the procedural requirement of an order to show cause in a criminal contempt proceeding.
[2] A party who affirmatively represents to the trial court that they waive a procedural defect cannot later claim prejudice from the court's ruling based on that waiver.
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The purge provision of the 1988 contempt order that the ex-wife was found to have violated
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Join FLexlaw to unlock all legal intelligenceIn July 1990, the ex-husband filed a motion for indirect criminal contempt against the ex-wife, supported by affidavits from three patients who overhe…
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POLEN, Judge.
Appellant, the former wife, appeals the trial court’s order finding her in indirect criminal contempt for her violation of an October 20, 1988, contempt order. The 1988 contempt order, entered against both the former wife and the former husband, included a provision by which the parties could purge themselves of contempt “by not uttering one single solitary libelous, slanderous or any other derogatory remark towards the other_” Neither party appealed the 1988 order. We affirm the judgment of indirect criminal contempt.
In July of 1990, the former husband, a practicing plastic surgeon, filed a motion for indirect criminal contempt, asking the court to issue an order to show cause to the former wife. The motion was accompanied by the affidavits of three (3) of the former husband’s patients who attested to having overheard the former wife at a cocktail party, and on other occasions, making derogatory remarks about medical malpractice suits filed against the husband, the husband’s sexual habits, and the husband’s new wife. The trial court did not issue an order to show cause, but rather issued an order setting the motion for calendar call.
At the trial, the husband’s counsel remarked in opening that the attorneys waived the necessity of an order to show cause mandated by Florida Rule of Criminal Procedure 3.840. The court asked the wife’s counsel whether there was a mutual agreement to waive certain procedural defects in getting the case to the hearing, and the wife’s counsel responded:
MR. DONER [Counsel for Wife]: Yes, my client is most anxious to get this concluded. We did not want to be dilatory in any way with respect to there not being an Order to Show Cause so we have waived that and gone ahead and proceeded based on the Motion for Indirect Criminal Contempt and those sworn affidavits attached to it.
The wife argues on appeal that the trial court erred in failing to issue an order to show cause pursuant to Florida Rule of Criminal Procedure 3.840. A party’s failure to raise the issue of noncompliance with rule 3.840 in the trial court will not bar full consideration of the record on appeal, as such noncompliance constitutes fundamental error. Deter v. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977); Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990). Nevertheless, this is not a case where a party remained silent in the trial court, failing to object. Here, the former wife affirmatively represented to the trial court that she waived the necessity of an order to show cause. She expressed her interest in proceeding with the hearing. She cannot now allege that she was prejudiced by a ruling she invited the trial court to make.
We also find no error in the judgment of indirect criminal contempt entered against the former wife. On appeal she argues that identification was lacking at the hearing. The trial court found that it was, indeed, the former wife who made the statements about her former husband, and we will not substitute our judgment for that of the trial court.
The wife also attempts to collaterally attack the November 2, 1988, contempt order that contained the purge provision she was later found guilty of having disobeyed. If the former wife desired to attack that order, she should have done so, not by disregarding or violating the order, but by direct appeal or by motion to set it aside. Sandstrom v. State, 309 So. 2d 17, 20 (Fla. 4th DCA 1975). We do not find any of her attacks on that order compelling. We do not address the wife’s fourth point, as the issue of attorney’s fees has been previously argued and decided by this court.
AFFIRMED.
DELL and GUNTHER, JJ., concur.
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Baker v. Green, 732 So. 2d 6 (Fla. 4th DCA 1999)…2d DCA 1992); Starchk v. Wittenberg, 411 So. 2d 1000, 1001 (Fla. 5th DCA 1982). This was not a case where the contemnor “affirmatively represented to the trial court that she waived” an irregularity in the contempt procedure. Cf. Persoff v. Persoff, 589 So. 2d 1007, 1009 (Fla. 4th DCA 1991). We reverse that portion of the September 12, 1997 order holding the former wife in contempt and assessing a fine. Should the issue of the amount of a punitive fine arise on remand, we note that the maximum punitive fine…
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Reins v. Johnson, 604 So. 2d 911 (Fla. 2d DCA 1992)…undamental error. Brown v. State, 595 So. 2d 259 (Fla. 2d DCA 1992); Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990). Only an express waiver will suffice to estop the aggrieved party from challenging the adjudication on appeal. Persoff v. Persoff, 589 So. 2d 1007 (Fla. 4th DCA 1991). Mrs. Reins made no such waiver. The order under review is also deficient in that it fails to recite the “facts constituting the contempt of which the defendant has been found and adjudicated guilty.” Fla.R.Crim.P. 3.840(a)(6).…
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Sandelier v. State, 238 So. 3d 831 (Fla. 4th DCA 2018)…ts of rule 3.840 constitutes fundamental error. Baker v. Green, 732 So. 2d 6, 7 (Fla. 4th DCA 1999). A party’s failure to raise the issue of noncompliance with rule 3.840 will not bar full consideration of the issue on appeal. Persoff v. Persoff, 589 So. 2d 1007, 1008-09 (Fla. 4th DCA 1991). Indirect criminal contempt is a proceeding in which the individual is protected by the full panoply of due process rights. Martin v. State, 743 So. 2d 591, 592 (Fla. 4th DCA 1999). This court has reversed an indirect…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Deter v. Dinina D. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977)
- Sandstrom v. State, 309 So. 2d 17 (Fla. 4th DCA 1975)
- Bray v. Rimes, 574 So. 2d 1114 (Fla. 2d DCA 1990)