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Kane v. Kane

Florida Court of Appeals, Third District

May 9, 2018

David Kane, Appellant,
v.
Ilene Sturman Kane, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Jorge Rodriguez-Chomat, Judge. Lower Tribunal No. 03-12047

          The Bonham Law Firm, P.L. and David L. Bonham, for appellant.

          Ilene Sturman Kane, in proper person.

          Before EMAS, FERNANDEZ and LUCK, JJ.

          OPINION

          PER CURIAM.

         The trial court held the former husband in indirect civil contempt for not making his court-ordered alimony payments. The former husband contends on appeal that the contempt order violated his due process rights because he did not receive the contempt motion and notice of the allegations against him until the hearing, and therefore did not have an opportunity to prepare. We agree the former husband did not receive proper notice, and reverse the contempt order and the judgment and writ of bodily attachment that followed it, and remand for further proceedings.

         Factual Background and Procedural History

         David Kane and Ilene Sturman Kane were divorced in October 2004. The final judgment of dissolution, which incorporated a marital settlement agreement, required the former husband to pay alimony to the former wife in the amount of $4, 650 until 2020.

         On August 14, 2015, the trial court entered an "order of referral to general magistrate" referring a "motion: for contempt [d]ated: 1/24/2014." There was no motion attached to the referral order; the trial court docket did not reflect a motion for contempt dated January 21, 2014; and there was no such motion in the record.

         Based on the referral, the general magistrate held a contempt hearing on January 12, 2016. The former husband, who lived in Israel, was represented by counsel. The former husband's counsel told the general magistrate that while there had been an earlier motion for contempt that resulted in a judgment, "to my knowledge there's no other renewed motion for today. . . . I couldn't access anything." The general magistrate told the former husband's counsel that the former wife, who was representing herself, had "a letter sent in that the court deems to be a motion." The former husband's counsel explained that "I just had no access to any of this and I've been looking for it. . . . [A]gain the only thing that I say is I didn't have privy to see this." At the end of the hearing, after finding the former husband in contempt, the general magistrate gave the former husband's counsel a copy of the former wife's letters. The letters were still not on the trial court's docket or in the record.

         The general magistrate entered a report finding that the former wife's letter was "a Motion for Contempt in light of the fact that she [was] a pro se litigant." The general magistrate also found that the former husband had not made alimony payments since January 17, 2014. The general magistrate recommended that a judgment be entered against the former husband in the amount of $158, 474.73.

         The trial court ratified and approved the general magistrate's report, and adopted her findings and recommendations. The trial court entered judgment consistent with the general magistrate's recommendation, and a writ of bodily attachment for the former husband to be brought before the trial court within forty-eight hours of arrest.

         The former husband moved for rehearing because he was denied due process. The former husband contended, as he did at the January 12, 2016 general magistrate hearing, that he did not receive the former wife's letters which prompted the referral, and that the letters were never made part of the record. Because he didn't have the letters until the day of the hearing, the former husband argued he was "denied the ability to properly prepare for the contempt hearing" and was "prejudiced as a result. Such action by ...


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