DILLARD H. DURHAM, APPELLANT,
v.
MONTRESS G. DURHAM, APPELLEE
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A husband appeals a dissolution of marriage judgment awarding the wife alimony, child support, and custody. The appellate court dismisses the appeal based on the husband's contempt of court for failing to comply with payment orders, applying the principle that appellants cannot seek judicial assistance while flouting court orders.
The appellate court may dismiss an appeal when the record establishes that the appellant has been adjudged in contempt for disobeying a trial court order in the cause appealed from, as it is contrary to principles of justice to permit one who has defied court orders to demand judicial assistance.
[1] An appellate court may dismiss an appeal when the appellant has been adjudged in contempt for disobeying a trial court order in the cause appealed.
[2] An appellate court is not required to determine the correctness of a lower court's action when the appellant willfully disobeys the lower court's order without just cause…
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Join FLexlaw to unlock all legal intelligence“where the record establishes the fact that the appellant has been adjudged in contempt for disobeying an order of the trial court in the cause appealed from, that then the appellate court may, in the exercise of its judicial discretion, dismiss the appeal.”
Establishes the core legal rule governing dismissal of appeals when appellant is in contempt
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a final judgment of dissolution on February 27, 1973, awarding the wife lump sum and periodic alimony, custody of two minor ch…
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DOWNEY, Judge.
This is an appeal by the husband from a final judgment of dissolution entered February 27, 1973, wherein the trial court awarded the wife lump sum and periodic alimony and custody of the two minor children of the parties and child support. The husband complains of the award of lump sum and periodic alimony and the award of custody of one of the children.
The final judgment was not superseded. On May 13, 1974, the trial court found the husband in contempt for failure to pay $2,150.00 in alimony, $105.00 child support and $500.00 attorney’s fees, and sentenced him to 90 days in the Orange County jail. Leave to purge himself of contempt was given the husband by paying $2,755.00 prior to May 20, 1974. If he failed to purge himself of contempt in said time he was ordered to report on May 20, 1974 to the Sheriff of Orange County for confinement to serve said sentence.
The wife has filed a motion to dismiss this appeal on the ground that the husband, appellant, stands in contempt of the trial court for failure to comply with the aforesaid order of May 13, 1974. Said motion has been supported by an affidavit of the appellee that no part of the sums ordered to be paid has in fact been paid, and an affidavit of the Sheriff of Orange County that appellant has failed to report to him for confinement in accordance with the court’s order of May 13, 1974. A certificate of the Clerk of the Circuit Court of Orange County has also been filed showing that as of June 21, 1974, no payments have been received from appellant pursuant to the final judgment.
In an almost identical situation it was held in Morris v. Rabara, Fla.App.1962, 145 So. 2d 265:
“. . . where the record establishes the fact that the appellant has been adjudged in contempt for disobeying an order of the trial court in the cause appealed from, that then the appellate court may, in the exercise of its judicial discretion, dismiss the appeal. This court will not be required, at the instance of the appellant, to determine the correctness of the action of the lower court, while the appellant, in defiance of the court, wilfully refused, without just cause, to abide by the trial court’s order. It is contrary to the principles of justice to permit one who has flaunted the orders of the courts to demand judicial assistance. An appellate court is authorized to enforce an order made by the lower court and which has been violated by a party to the proceedings.”
Accordingly, the motion to dismiss will be granted and an order will be entered that this appeal be dismissed unless it shall be made to appear to this court, on or before 15 days from the date of the filing of this opinion, that the appellant has either purged himself of contempt or is in the custody of the Sheriff of Orange County.
OWEN, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Gazil v. Gazil, 343 So. 2d 595 (Fla. 1977)…de to appear to this court, on or before thirty (30) days from the date of the filing of this opinion, that the appellant has either purged himself of his contempt or is in the custody of the Sheriff of Palm Beach County.” At 267. Durham v. Durham, 297 So. 2d 857 (Fla. 4th DCA 1974), involved a situation where the appellant had been adjudged in contempt for failure to comply with an order of the trial court. In granting the motion to dismiss, the court said: “Accordingly, the motion to dismiss will be grant…
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Jaffe v. Hardy M. Snow, Jr., 610 So. 2d 482 (Fla. 5th DCA 1992)…ed to maintain the appeal until he has purged himself of the contempt. Pasin v. Pasin, 517 So. 2d 742 (Fla. 4th DCA 1987), rev. denied, 528 So. 2d 1183 (Fla.1988); In re Guardianship of Crawford, 470 So. 2d 816 (Fla. 1st DCA 1985); Durham v. Durham, 297 So. 2d 857 (Fla. 4th DCA 1974); Morris v. Rabara, 145 So. 2d 265 (Fla. 2d DCA 1962). As the court in Morris noted, “it is contrary to the principles of justice to permit one who has flaunted the orders of the court to demand judicial assistance. An appellate c…
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Salamon v. Salamon, 306 So. 2d 554 (Fla. 1st DCA 1975)…n these appeals) and thereby become amenable to the process of this Court and the trial court. (See Morris v. Rabara, Fla.App. 2nd 1962, 145 So. 2d 265; Bronk v. Bronk, Sup.Ct. Fla. 1903, 46 Fla. 474, 35 So. 870; Durham v. Durham, Fla.App. 4th 1974, 297 So. 2d 857 and Mitchell v. State, Fla.App. 1st 1974, 294 So. 2d 395) Appellee’s request for attorney’s fees incident to these appeals is deferred until final disposition. It is so ordered. McCORD and MILLS, JJ., concur.…
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- Morris v. Rabara, 145 So. 2d 265 (Fla. 2d DCA 1962)