IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
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LEE COUNTY, FLORIDA
CIVIL ACTION
G,
Husband,
vs.
G,
Case No. XX DR 000 N
Wife,
ORDER DENYING THREE MOTIONS
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This matter having come before the court today on (1) the wife’s motion for contempt filed
8/9/2013; (2) the husband’s amended motion for contempt filed 8/26/2013; and (3) the father’s ore
tenus motion concerning withdrawal of the children from school;
it is ordered:
1. Findings
The wife proved the husband took a trip to Guanajuato, Mexico, in March 2013. His father
paid for the trip. She also proved that the husband was “laid off” from his job in April 2013 and he
has not had temporary work since then. He was formerly working as an estimator for a
construction firm. She also proved a photograph of the husband was taken somewhere in
December 2012.
The husband proved the wife did not produce the documents to counsel for the husband
listed on Schedule “A” of the magistrate’s report filed 1/18/2013, as ordered by the court in the
order dated 8/7/2013. The magistrate’s report was adopted as the order of the court on 2/11/2013.
The husband’s amended motion asks for “$375" in attorney’s fees but at the hearing
counsel for the husband asked for “$750,” which is the amount the wife was ordered to pay by
paragraph 5 of the order dated 8/7/2013.The husband’s amended motion asks for enforcement of
unnamed “prior orders” by various listed sanctions and “any other coercive sanction or relief
permitted by law,” but at the hearing counsel for the husband asked the court to strike the wife’s
pleadings, which was not mentioned in the amended motion as a possible sanction.
On the husband’s ore tenus motion the husband proved the wife withdrew the children
from a public school and enrolled them in a private school without obtaining the husband’s
consent or agreement.
2. Ruling
2.1
Wife’s motion is denied
An order granting a civil contempt motion for the nonpayment of child support or alimony
must make certain findings of fact pursuant to Rule 12.615(c) & (d), and the findings of fact must
be supported by competent, substantial evidence in the record. Rule 12.615(c) & (d). The record
does not contain such evidence so the court cannot make the required findings of fact at this
hearing. The only findings the court can make on the evidence presented on the wife’s motion are
those stated above, which are insufficient for a civil motion for the nonpayment of support under
Rule 12.615. The salient fact not proven by evidence at the hearing was the nonpayment of the
child support and alimony and the total amount not paid, along with the other matters required to
be proven under Rule 12.615(c) & (d).
The court also does not find that the husband had notice of the hearing on the mother’s
motion, as required by Rule 12.615(c), because a notice of hearing on her motion was not filed in
the court file. The husband appeared at the hearing with his attorney, but his amended motion was
noticed for a hearing today.
The argument of an attorney is not evidence. See, e.g., Blimpie Capital Venture, Inc., v.
Palms Plaza Partners, Ltd., 636 So.2d 838, 840 (Fla. 2d DCA 1994): “We have held that, in the
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absence of a stipulation, a trial court cannot make a factual determination based on an attorney’s
unsworn statements. State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991). A trial court, as well
as this court, is also precluded from considering as fact unproven statements documented only by
an attorney. Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991). See also Leon Shaffer
Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982) (‘If the advocate
wishes to establish a fact, he must provide sworn testimony through witnesses other than himself
or a stipulation to which his opponent agrees.’)”. See, also, Florida Standard Jury Instructions in
Criminal Cases 2.7.“Please remember that what the attorneys say is not evidence.” See also
Romeo v. Romeo, 907 So.2d 1279, 1284 (Fla. 2d DCA 2005) “argument of counsel does not
constitute evidence.”
Therefore, the wife’s motion is denied, without prejudice.
Husband’s amended motion is denied
Regarding the issue of attorney’s fees, the order of 8/7/2013 requires the wife to pay
counsel for the husband $750 within 30 days, or by 9/7/2013. Counsel for the husband told the
court the fees have not been paid to her as ordered.
While a lawyer may not give evidence on the merits of a case while representing a party to
the case, there is an exception for the payment of attorney’s fees to a lawyer pursuant to a court
order. Counsel may give evidence of payment or nonpayment of fees as ordered.
Likewise, on a motion to compel discovery or a motion for contempt for nonpayment of an
order granting a motion to compel discovery, counsel may give evidence of the other party’s
compliance with the requested discovery or the order compelling discovery.
The court finds the wife did have notice of the hearing on the husband’s amended motion
because a notice of hearing on that motion was filed with a certificate of service.
However, the amended motion is vague about what was owed under the order of 8/7/2013.
The amended motion put the wife on notice that “$375" was owed, but at the hearing counsel said
“$750" was owed.
Further, whenever the question is the payor’s willful contempt of an order to pay money,
the payor’s ability to pay must be proven. The movant has the burden of proof of all of the
essential elements of a civil motion for contempt. There was no evidence of the wife’s ability to
pay $750 since 8/7/2013. There is no statutory presumption of an ability to pay attorney’s fees.
Cf. §61.14(5).
The husband proved the wife did not produce the documents to counsel for the husband
listed on Schedule “A” of the magistrate’s report filed 1/18/2013 within 30 days of 8/7/2013, as
ordered by the court in the order dated 8/7/2013.
However, the motion is insufficient notice of the sanction requested at the hearing, that is,
striking of the wife’s pleadings because that sanction is not mentioned in the husband’s amended
motion. Striking a party’s pleadings is a severe sanction, a sanction for which notice must be
given.
Therefore, the husband’s amended motion is denied, without prejudice.
2.2
Husband’s ore tenus motion is denied
This motion consisted of a lament and a complaint at the hearing that the wife changed the
children’s school without conferring with the husband and sharing the decision. No notice of the
motion was made, no prior order requiring shared parental decision making was cited to the court,
and no notice of a proposed sanction as a result was presented.
Further, there is no emergency situation proven that justifies granting an ore tenus motion,
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a motion for which there was no prior notice at all.
The ore tenus motion asks for ex parte relief, because there is no notice of the motion prior
to the hearing today, but the husband does not cite the court to any authority that allows the court
to enter an order without notice to the other party because of a failure to share a parenting decision
about the children’s school.
The facts do not amount to an emergency as defined by the law that is sufficient to allow
the court to enter an order ex parte, that is, without notice to the other party. Williams v. Williams,
845 So.2d 246 (Fla. 2d DCA 2003). See also Loudermilk v. Loudermilk, 693 So.2d 666 (Fla. 2d
DCA 1997), in which “emergency” is defined as a threat of harm to a child or the improper
removal of a child from the state.
Assuming the facts were sufficient for an ex parte order, the court would nevertheless be
required to give the other party an opportunity to be heard on the motion within 20 days. Wilson v.
Roseberry, 669 So.2d 1152 (Fla. 5th DCA 1996) and Williams v. Williams, 845 So.2d 246 (Fla. 2d
DCA 2003).
Therefore, the husband ore tenus motion is denied, without prejudice.
Done and ordered in Fort Myers, Lee County, Florida, this ___________________
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R. Thomas Corbin, Circuit Judge
Copies provided to:
, Esq., and , Esq.
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