IN RE: CONTEMPT ADJUDICATION OF JESSIE L. WEINER.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Petition for Writ of Habeas Corpus to the Circuit Court for
Pasco County; Lauralee G. Westine, Judge.
Melissa Isaak of The Isaak Law Firm, Montgomery, Alabama; and
Richard J. Mockler and Angela L. Leiner of Mockler Leiner
Law, P.A., Tampa, for Petitioner.
accordance with our previously entered order converting
Jessie L. Weiner's petition for a writ of certiorari to a
petition for a writ of habeas corpus and granting it, we now
write to address the trial court's errors in finding Ms.
Weiner in indirect criminal contempt.
proceeding below is a postjudgment custody action between
Timothy Weiner (the Father) and Jesica Wingo (the Mother).
Ms. Weiner is the Father's current wife and is not a
party to the action below.
December 2018, during the pendency of the custody case, the
trial court issued two orders directing the Father to keep
any information about the case off social media and to
prevent family members from publishing information about the
custody action on social media. Because she is not a party to
the custody case, Ms. Weiner was not served with the order.
Thereafter, on March 21, 2019, the trial court entered an
order directing Ms. Weiner to show cause why she should not
be held in indirect criminal contempt for failing to obey the
orders. Ms. Weiner received the order to show cause on April
1, 2019, the day before the 4:30 p.m. hearing that had been
scheduled on the order to show cause. Her counsel, whom she
retained on the same day as the hearing on the order to show
cause, appeared and orally argued for dismissal, for the
judge's disqualification, and for a continuance. The
trial court denied all of the motions, found Ms. Weiner
guilty of indirect criminal contempt, and sentenced her to
five months' confinement in the Pasco County Jail. She
then challenged the court's contempt order in the
petition before this court. For the reasons set forth below,
we granted Ms. Weiner's petition for writ of habeas
corpus. She has been released from confinement pursuant to
our May 6, 2019, order.
the order to show cause violated Ms. Weiner's due process
rights because she was not subject to or served with the
court order that she was accused of disobeying. "For a
person to be held in contempt of a court order, the language
of the order must be clear and precise, and the
behavior of the person must clearly violate the order."
Reder v. Miller, 102 So.3d 742, 743 (Fla. 2d DCA
2012) (quoting Paul v. Johnson, 604 So.2d 883, 884
(Fla. 5th DCA 1992)). Here, the trial court recited the
conduct it perceived to be objectionable based on the
previously-issued orders directed to the Father, which were
not served on Ms. Weiner. See Tsokos v. Sunset Cove
Invs., Inc., 936 So.2d 667, 670 (Fla. 2d DCA 2006)
(holding that third parties could not be held in indirect
criminal contempt for violating a judgment where the judgment
did not proscribe the conduct forming the basis of the order
to show cause); cf. Reder, 102 So.3d at 743-44
(concluding that attorney could not be held in indirect civil
contempt for conduct that did not violate the express
language of the order and clarifying that "to the extent
the trial court found [the attorney] in contempt of this
order for failing to comply with its intent, the
contempt finding cannot stand").
the order to show cause was not served on Ms. Weiner within a
"reasonable time allowed for preparation of the
defense," as required by Florida Rule of Criminal
Procedure 3.840(a). Ms. Weiner's name did not appear in
the order's service list, and it is undisputed that she
received the order the day before the hearing and did not
engage counsel until the morning of the hearing. Cf. Russ
v. State, 622 So.2d 501, 502 (Fla. 5th DCA 1993)
(reversing contempt order on the basis that notice served two
days before the hearing was not reasonable and violated due
the trial judge should have disqualified herself because the
contempt conduct involved disrespect and criticism of the
judge. Rule 3.840(e) provides that a trial judge must
disqualify herself if the charged contempt "involves
disrespect to or criticism of" the judge. "[T]he
purpose of the rule is to assure that a person cited for a
contempt of court which involved a criticism of a judge,
would not be tried on the contempt charge before the judge
who was the subject of the criticism." Bumgarner v.
State, 245 So.2d 635, 637 (Fla. 4th DCA 1971)
(construing Florida Rule of Criminal Procedure 1.840(a)(5),
the predecessor rule that is materially the same as the
current rule 3.840(e)).
Ms. Weiner is entitled to habeas relief The contempt order is
SILBERMAN, MORRIS, and BLACK, JJ, Concur.