Steven Frank Schneider, Husband v. Angela M. Schneider, Wife , 2016 Fla. App. LEXIS 5384 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
STEVEN FRANK SCHNEIDER,
HUSBAND, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-914
ANGELA M. SCHNEIDER,
WIFE,
Appellee.
_____________________________/
Opinion filed April 8, 2016.
An appeal from the Circuit Court for Clay County.
Dan Wilensky, Judge.
Lynn W. Martin of Law Offices of Lynn W. Martin, Jacksonville, for Appellant.
No appearance for Appellee.
RAY, J.
Steven Frank Schneider, the former husband, appeals from a final order
finding him in contempt for failure to timely pay an amount due under a final
judgment of dissolution of marriage and awarding attorney’s fees to Angela M.
Schneider, the former wife, under a reservation of jurisdiction on this issue in the
final judgment. The former husband challenges both the finding of contempt and
the award of fees. For the reasons explained below, we reverse the finding of
contempt, but we affirm the award of fees due to lack of preservation or transcripts
of the relevant proceedings.
The final judgment required the former husband to pay $343.64 in child
support and $200 from his military retirement pay each month, beginning on
December 1, 2014. On December 4, 2014, the former husband gave the former
wife a check in the amount of $343.64 and told her he did not intend to pay the
remaining $200. The former wife filed a motion for contempt the next day, and the
former husband paid the remaining $200 on December 22, 2014. At the time of the
hearing on the former wife’s motion for contempt, the former husband remained
current on all payments due under the judgment. The trial court found that the
former wife had “elected” to consider the first December payment “as payment for
the property settlement, and the remainder as child support.” Ratifying this
decision by the former wife, the court found the former husband in contempt for
his “refusal to timely pay the $543.64.”
A finding of civil contempt is reviewed for abuse of discretion. Kea v. Kea,
839 So. 2d 903, 904 (Fla. 1st DCA 2003). However, a finding of contempt for
unpaid debt is proper only if the debt is alimony or child support. Kea, 839 So. 2d
at 904. Therefore, it is an abuse of discretion to hold a person in contempt for
failure to comply with a property-settlement provision of a final judgment of
dissolution of marriage. Kea, 839 So. 2d at 904.
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Here, the former husband paid the former wife the exact amount due for
December child support three days after it was due and a day before she filed her
motion for contempt. The only reasonable interpretation of the check is that it was
a payment of child support. By ratifying the former wife’s decision to treat it as
something else, the court essentially found the former husband in contempt for
failing to make a property-settlement payment on time. 1
As for the fee issue, the order suggests that the court unduly focused on a
single large-sum check the former husband received just before the trial, without
taking into consideration the entire picture of each party’s financial circumstances.
Because the fee determination was necessarily based on evidence presented at the
final hearing leading to the final judgment of dissolution of marriage, we have
taken judicial notice, on our own motion, of the portion of the record filed in the
prior appeal from the final judgment, hoping that it would shed light on the trial
court’s decision. See Ellsworth v. Ins. Co. of N. Am., 508 So. 2d 395, 398 (Fla. 1st
DCA 1987) (recognizing that “in appropriate circumstances an appellate court may
take judicial notice of its own records”). The documents in the record give the
1
We do not read the trial court’s order as finding the former husband in contempt
for making his first post-judgment child support payment three days late, but for
allegedly failing to make the full child support payment until later in the month. To
the extent the order might be read as finding the former husband in contempt for
his late payment, it is still not salvageable under the unique facts of this case. The
purpose of contempt proceedings is to obtain compliance with a court order, not to
punish. Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985).
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impression that the final judgment left the parties on roughly equal financial
footing, or even that the former wife was in a better financial position, which
would make the fee award improper. Hutchinson v. Hutchinson, 2015 WL
5779387, at *1 (Fla. 1st DCA Oct. 2, 2015). However, this observation is only an
impression, as no transcripts of the evidentiary hearings at which the parties’
financial circumstances were litigated are available, and the trial court’s orders do
not contain findings sufficient to resolve our questions on this matter one way or
the other. 2 Although the former husband argues error in the lack of sufficient
findings, he did not preserve this challenge to the lack of sufficient findings as
required by our precedent. See Burkett v. Burkett, 155 So. 3d 478, 478 (Fla. 1st
DCA 2015). Under these circumstances, we affirm, not knowing if evidence and
arguments presented at the hearing would clarify the basis for the fee award and
the fee order’s focus on one aspect of the parties’ circumstances. See Applegate v.
Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979); Burkett, 155 So.
3d at 478; Furr v. Furr, 57 So. 3d 914, 914 (Fla. 1st DCA 2011).
AFFIRMED in part and REVERSED in part.
OSTERHAUS and WINOKUR, JJ., CONCUR.
2
Appellant obtained an approved statement of the evidence presented at one of the
relevant hearings under Florida Rule of Appellate Procedure 9.200(b)(4).
However, this statement did not sufficiently illuminate the state of the evidence on
the parties’ respective financial circumstances to allow for meaningful review of
the fee issue.
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