Michel Whissell v. Sheronne Whissell , 2015 Fla. App. LEXIS 11725 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHEL WHISSELL,
Appellant,
v.
SHERONNE WHISSELL,
Appellee.
No. 4D15-671
[August 5, 2015]
Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jeffrey Dana Gillen, Judge; L.T.
Case No. 14DR1981FZ.
Karen J. Haas of Law Offices of Karen J. Haas, Miami, for appellant.
Jonathan S. Root of Jonathan S. Root, P.A., Boca Raton, for appellee.
PER CURIAM.
In this dissolution of marriage case, Michel Whissell (“appellant”)
appeals the trial court’s non-final order holding him in contempt for the
fourth time due to his repeated failure to make court-ordered temporary
support payments, and his failure to comply with discovery.1
Additionally, the trial court 1) found that appellant owes a total of
$103,432.07 to Sheronne Whissell (“appellee”); 2) issued a third writ of
bodily attachment for appellant’s arrest; 3) found that he has
continuously willfully failed and refused to comply with the court’s
previous orders; 4) struck his pleadings; 5) entered a default judgment
against him; and 6) prohibited him from raising certain arguments in the
final hearing. Appellee has filed a motion to dismiss this appeal on the
grounds that appellant has not paid any of the court-ordered temporary
support.
1 We note that although appellant technically has been held in contempt four
times during the course of the proceedings below, the trial court actually
granted five separate motions for contempt against appellant. The second and
third motions for contempt were granted in one order which addressed them
both.
On appeal, appellant alleges several deficiencies with the trial court’s
non-final order. For the reasons stated below, we decline to address
these issues.
We previously have held that appeals will be dismissed in dissolution
of marriage cases where the appealing party has been held in contempt
for failure to pay court-ordered support, if the appealing party does not
comply with the trial court’s order(s) within a set time period. See Pasin
v. Pasin, 517 So. 2d 742, 742 (Fla. 4th DCA 1987); see also Durham v.
Durham, 297 So. 2d 857, 858 (Fla. 4th DCA 1974). Regarding situations
where the appealing party has flouted a trial court’s order, the Florida
Supreme Court has stated:
[I]t appears the rule in Florida is as follows: Where the
appellant has disobeyed an order of the trial court, the
appellate court may, in its discretion, either entertain or
dismiss an appeal. However, where a dismissal is ordered it
is mandatory that the disobedient appellant must be given a
period of grace, prior to the effective date of the dismissal, in
which to comply with the disobeyed order.
The order of the District Court of Appeal in the case sub
judice conflicts with these decisions in that petitioner was
not given an opportunity to purge himself so that he could
be heard on the merits of the appeal.
If an appellant husband absconds, the situation would be
quite different and there would be no need to allow a period
of time within which he could purge himself and be heard on
appeal. If the contempt is for nonpayment of money, he
should be given an opportunity to purge himself so that he
could be heard on the merits of the case.
Gazil v. Gazil, 343 So. 2d 595, 597 (Fla. 1977).
Throughout the course of the proceedings below, appellant repeatedly
has disobeyed the trial court’s orders to pay temporary support and
comply with discovery, resulting in four findings of contempt and three
writs of bodily attachment. Appellant previously was incarcerated for his
failure to comply with the trial court’s orders, and was released only after
he made a payment far below the arrearages he owed and promised the
trial judge in open court that he would comply. After his release,
appellant continued his pattern of disregarding the trial court’s
commands.
2
Accordingly, appellee’s motion to dismiss this appeal will be granted
unless, on or before thirty days from the filing of this opinion, it has been
made to appear to this court that appellant is in substantial compliance
with the trial court’s extant orders. We hereby relinquish jurisdiction to
the trial court for thirty days to conduct any proceedings necessary to
determine appellant’s compliance with those orders, and to provide a
status report to this court indicating whether appellant is in compliance
with those orders to the satisfaction of the trial court at the end of that
time.
Jurisdiction Relinquished.
MAY, KLINGENSMITH, JJ., and ROBY, WILLIAM L., Associate Judge, concur.
3