                                         IN THE DISTRICT COURT OF APPEAL
                                         FIRST DISTRICT, STATE OF FLORIDA
MARK A BROWNE,
                                         NOT FINAL UNTIL TIME EXPIRES TO
      Petitioner,                        FILE MOTION FOR REHEARING AND
                                         DISPOSITION THEREOF IF FILED
v.
                                         CASE NO. 1D16-679
HOLLY BLANTON-BROWNE,

     Respondent.
___________________________/

Opinion filed September 19, 2016.

Petition for Writ of Certiorari. Original jurisdiction.

Mark A. Browne, pro se, Petitioner.

Shelley L. Thibodeau of Stone Lockett, PA, Jacksonville, for Respondent.



RAY, J.

      Mark A. Browne, Petitioner, has filed a petition for writ of certiorari arguing

that the circuit court departed from the essential requirements of the law by failing to

follow Florida Family Law Rule of Procedure 12.615 when finding him in indirect

civil contempt for failure to pay his child support arrearage and the attorneys’ fees of

Holly Blanton-Browne, Respondent. We agree. Accordingly, we grant the petition.

      On    December      16,   2015,    Respondent       filed   a   motion   for   civil

contempt/enforcement, alleging that Petitioner had failed to pay his court-ordered child

support, arrearages, and attorneys’ fees. The court issued an order setting a hearing on
the motion. However, the notice of hearing did not contain language warning Petitioner

that if he did not appear at the hearing, he could be arrested and held for up to forty-

eight hours pending a hearing, as required by Rule 12.615(b).

         Respondent appeared at the appointed time, but Petitioner did not. After the

hearing, the court issued an order finding Petitioner in indirect civil contempt for

failure to pay “back child support” and attorneys’ fees despite having the ability to do

so. The court ruled that Petitioner could purge himself of the contempt by immediately

paying $19,522 (the approximate amount of the arrearage). Further, the court issued a

writ of bodily attachment to compel Petitioner to appear before the court and show

cause why he should not be incarcerated until such time as he complies with the court

order.

         On January 29, 2016, Petitioner was arrested under the authority of the writ. At

some point, he was released with instructions to appear before the court at a certain

time and place on February 1, 2016. A few days later, another writ of bodily

attachment was issued. We have no record of what occurred between Petitioner’s

release from custody and the re-issuance of the writ of bodily attachment or what has

happened since.

         Petitioner contends that he was not afforded a meaningful opportunity to be

heard after the issuance of the writ of bodily attachment due to erroneous instructions

given to him about where to appear to present his evidence. Respondent does not


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dispute Petitioner’s factual allegations about what occurred between his release from

custody and the issuance of the second writ. We need not request any record to

substantiate Petitioner’s claims or attempt to determine exactly what happened, * as

Petitioner has also argued correctly that errors occurred earlier in the process, and the

record shows that those errors have not been remedied.

         Under Rule 12.615, a notice of hearing on a motion for civil contempt related to

family support matters must specify the time and place of the hearing and contain the

following language:

         FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE
         COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR
         ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL
         UP TO 48 HOURS BEFORE A HEARING IS HELD.

When the alleged contemnor fails to appear for the hearing after proper notice, the

hearing is to proceed for the limited purpose of allowing the movant to make a prima

facie case of contempt in accordance with Rule 12.615(c)(1). If the movant meets this

burden, the court is required to “set a reasonable purge amount based on the individual

circumstances of the parties” and may issue a writ of bodily attachment for the purpose

of having the alleged contemnor brought before the court to answer the motion. Fla.

Fam. L. R. P. 12.615(c)(2)(B).




*
    See Fla. R. App. P. 9.220(a).

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      After the court hears from both parties, the court is to enter an order granting or

denying the motion for contempt. See Fla. Fam. L. R. P. 12.615(d). If the order grants

the motion, it must contain findings that the contemnor had the present ability to pay

support and willfully failed to do so, and it must contain a recital of the facts on which

the findings are based. Fla. Fam. L. R. P. 12.615(d)(1). The court may order a sanction

designed to compel compliance with the earlier support orders. Fla. Fam. L. R. P.

12.615(d)(2). However, any such coercive sanction must be accompanied by a

provision that gives the contemnor the opportunity to “purge . . . the contempt.” Fla.

Fam. L. R. P. 12.615(e). The court must make a finding that the contemnor has the

present ability to comply with the purge provision and state the factual basis for that

finding. Id.

      The first error in this case took place at the beginning of the process, when

Petitioner was not warned that his failure to appear at the initial hearing on the motion

for contempt could result in a writ authorizing his arrest. Before being placed at risk of

arrest, Petitioner should have been given the opportunity to appear voluntarily before

the court with a full appreciation of the likely consequences if he failed to do so. See

Fla. Fam. L. R. P. 12.615(b). Because it is undisputed that Petitioner has not yet

appeared before the judge who found him in contempt after the faulty hearing in order

to present his defense, the error in the lack of notice is not harmless and has not been

cured. Cf. Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 4th DCA 2005) (holding that


                                            4
error in the lack of the required warning language was waived when the alleged

contemnor appeared at the hearing).

      The result of the faulty initial hearing was not only the issuance of a writ of

bodily attachment without warning, but also a premature and insufficiently supported

finding of contempt after an incomplete process. The rule does not envision a finding

of contempt before the alleged contemnor actually appears in court, as occurred here.

Moreover, the premature finding of contempt lacks the required supportive finding that

Petitioner’s failure to pay the previously ordered amount was willful, and it lacks the

required recital of the factual basis for the court’s determinations that Petitioner failed

to pay while having the ability to do so.

      These errors might have been corrected or rendered harmless after Petitioner’s

arrest, at least to the extent a faulty arrest can be rendered harmless, if Petitioner had

been taken before the judge who issued the contempt order for a hearing on the motion

under Rule 12.615(c)(2)(B). However, we know from the re-issuance of the writ that

Petitioner has not been brought before the court for the purpose of completing the

process on Respondent’s motion and perhaps correcting the earlier errors. It appears

that the initial procedural misstep of failing to warn Petitioner of the consequences of

absenting himself from the hearing set in motion a series of violations of the rule. The

result is an order finding Petitioner in contempt after an incomplete process that leaves

Petitioner under a continual threat of arrest unless he immediately pays almost


                                            5
$20,000, even though the court has not heard from Petitioner to be sure that he has the

present ability to do so and even though he has already been arrested once on this

matter.

      We question why Petitioner did not simply contact the court after issuance of the

second writ so that he could make arrangements to complete the process on the

contempt motion, as must inevitably occur, rather than invoke this Court’s certiorari

jurisdiction and live in fear of arrest while his petition was pending. However,

Petitioner’s questionable choices do not eliminate the trial court’s significant errors in

this case. Accordingly, we grant the petition before us and quash the order of contempt

and related writ of bodily attachment. The trial court is, of course, free to conduct

further proceedings on Respondent’s motion for contempt after issuance of a notice in

compliance with Rule 12.615(e).

      PETITION GRANTED.

MAKAR and OSTERHAUS, JJ., CONCUR.




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