Call to Request a Free Consultation | Nou pale kreyĆ²l

Husband Who Fails to Pay Child Support Has Right Against self incrimination in a Contempt Proceeding

The case of Harvey v. State, 2008 WL 4647386 (Fla. 2d DCA October 22, 2008) involved an appeal from a trial court finding Mr. Harvey guilty of indirect criminal contempt for failing to comply with court ordered payment of child support. Harvey's former wife, through counsel, filed a motion to have Harvey held in contempt, and the court issued an order for Harvey to show cause why he should not be held in contempt for failure to pay court ordered child support.

Based upon the wife's motion, the court found that Harvey was voluntarily unemployed to avoid an income deduction order and that he refused to pay child support; therefore, he was in willful contempt of court for his violation of the Final Judgment of Dissolution of Marriage.

At the contempt hearing, counsel for the ex-wife argued that since this was not a criminal prosecution, Mr. Harvey did not enjoy his Fifth Amendment privilege against self incrimination. Harvey contended this was not correct, and since the indirect criminal contempt was in fact a criminal proceeding, he enjoyed his right not to be compelled to testify against himself pursuant to the Fifth Amendment of the U.S. Constitution and the Florida Constitution, Article I, Section IX. The trial court ruled that Mr. Harvey had to testify and he did so. He was then found guilty of indirect criminal contempt and ordered incarcerated for 90 days.

The Second District Court of Appeals reversed and held that criminal contempt is a crime and that the imposition of criminal contempt sanctions such as incarceration, required that the contemnor (that is, a person who is alleged to have been in contempt) be afforded the same constitutional due process protections afforded to criminal defendants. This includes the right to be represented by counsel, the right to have the state prove the offense beyond a reasonable doubt, and the right not to incriminate oneself. The Florida Supreme Court previously recognized these rights. See Parisi v. Broward County, 769 So. 2d 359, 364 (Fla. 2000) and Gidden v. State,613 So. 2d 457, 460 (Fla. 1993).

The District Court went on to reverse the conviction saying that the requirement that they could not find that the trial court's error in requiring Mr. Harvey to testify was harmless error.