ALLIE LOUIS CONE, III, APPELLANT,
v.
TERESA CONE GILLSON, APPELLEE
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The appellate court held that an order of indirect criminal contempt must be reversed because the order to show cause failed to comply with Florida Rule of Criminal Procedure 3.840.
The Former Husband was found guilty of indirect criminal contempt for failing to make payments required by a final judgment of dissolution. The order …
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FULMER, Judge.
Allie Louis Cone, III, the Former Husband, appeals an order finding him guilty of indirect criminal contempt for failing to make payments required of him in a final judgment of dissolution of marriage. We reverse.
The order 'to show cause that was issued to initiate the indirect criminal contempt proceeding fails to comply with Florida Rule of Criminal Procedure 3.840 in that it was based on an unsworn motion filed by Teresa Cone Gillson, the Former Wife, which alleged that the Former Husband had failed to make payments due on alimony, attorney’s fees, and equitable distribution' awards. And, while it appears that the trial court also considered a sworn affidavit previously filed by the Former Wife, that affidavit addressed only the Former Husband’s failure to pay sums of money awarded to the Former Wife as equitable distribution of the parties’ assets and liabilities. In supplemental briefing, both parties acknowledge that a trial court is without authority to enforce equitable distribution awards by contempt. See Kadanec v. Kadanec, 765 So. 2d 884 (Fla. 2d DCA 2000); Montanez v. Montanez, 697 So. 2d 184 (Fla. 2d DCA 1997).
Because a trial court’s failure to comply with the procedural requirements of rule 3.840 is fundamental error, we reverse. See Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000). However, we note that while our reversal renders moot the other issues raised on appeal, it does not relieve the Former Husband of his obligations under the final judgment of dissolution.
Reversed and remanded.
SALCINES and VILLANTI, JJ., concur.
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Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2d DCA 2009)
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Sramek v. State, 946 So. 2d 1235 (Fla. 2d DCA 2007)…a proper affidavit. The prosecution of indirect criminal contempt is governed by Florida Rule of Criminal Procedure 3.840. Florida courts have held that failure to strictly follow the dictates of that rule is fundamental error. See Cone v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003); Mix v. State, 827 So. 2d 397, 399 (Fla. 2d DCA 2002); Hunt v. State, 659 So. 2d 363, 364 (Fla. 1st DCA 1995). Moreover, the fact that a defendant has already served his sentence does not render his appeal moot. Hagan v. State, 85…
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Oglesby v. Oglesby, 921 So. 2d 849 (Fla. 2d DCA 2006)…ember of the military. First, a pension is an asset subject to equitable distribution. § 61.075(5)(a)(4), Fla. Stat. (2004). Consequently, the award to the Former Wife of her share of the pension is not enforceable by contempt. See Cone v. Gillson, 861 So. 2d 1210 (Fla. 2d DCA 2003); Kadanec v. Kadanec, 765 So. 2d 884 (Fla. 2d DCA 2000). Paragraph 11.7 also contains an improper reference to enforcing the payment of the Former Wife’s share of the pension by contempt. Second, a trial court does not have author…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Montanez v. Montanez, 697 So. 2d 184 (Fla. 2d DCA 1997)
- Kadanec v. Kadanec, 765 So. 2d 884 (Fla. 2d DCA 2000)
- Tally v. State, 751 So. 2d 152 (Fla. 1st DCA 2000)
- Bradford C. Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA 2000)