Hammond v. SandstromHammond v. Sandstrom
Janet Reno, State‘s Atty. and Ira N. Loewy, Asst. State‘s Atty., for respondent.
SCHWARTZ, Judge.
Hammond has brought this petition for writ of habeas corpus, seeking release from his cоnfinement upon a Circuit Court order committing him to the Dade County jail for 60 days, after he had, in an earlier order, been found guilty of contempt for failure to make child support payments required by
In our view, the papers upon which the рetitioner was sent to jail do not support his incarceration in at least two particulars:
(1) Although the order holding the petitioner in contempt adopted a finding by the general master that Hammond had previously been able to comply with the judgment, but had divested himself of the ability to do so, it did not mаke the further, and indispensable, finding that the divestment had taken рlace “through his fault or neglect designed to frustrate the intent and purpose of the order.” Faircloth v. Faircloth, 339 So.2d 650, 651 (Fla. 1976). Since there was neithеr such a determination nor one that the alleged contemnor presently has the ability to pay but willfully refuses to do sо, the imprisonment for contempt may not be sustained.1 Faircloth v. Faircloth, supra; State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936); Murphy v. Murphy, 370 So.2d 403, 409 (Fla. 3d DCA 1979); Adams v. Adams, 357 So.2d 264 (Fla. 3d DCA 1978).
(2) While the order of contempt provided that Hammond could purge himself by making his child-support payments,2 the order of commitment did not. It is well-settled that
“It is necessary that an order imprisoning for civil contempt provide that the contemnor may purge himself by the performance of the act ordered. In Re S.L.T., Fla.App. 1965, 180 So.2d 374.” [e.s.]
Spencer v. Spencer, 311 So.2d 822, 824 (Fla. 3d DCA 1975). In order for the contemnor truly to “cаrry the key to his prison in his own pocket,” see Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla. 1956), it is required that the order which authorizes his imprisonment, in this case, the order of commitment, itself show the means by which that key can be utilized. It is hardly appropriate to compel his jailer to investigate the contents of prior orders in the case in оrder to determine that the prisoner, by having purged himself of contempt, has become entitled to release.
Since each of these defects renders the proсeedings below void on their face and thus subject to reviеw by habeas corpus, see State ex rel. Trezevant v. McLeod, supra; Demetree v. State ex rel. Marsh, supra; State ex rel. Pipia v. Buchanan, 168 So.2d 783 (Fla. 3d DCA 1964); State ex rel. Byrd v. Anderson, 168 So.2d 554 (Fla. 1st DCA 1964); 15 Fla.Jur. Habeas Corpus § 71 (1957); the petition is granted and the petitioner ordered dischargеd forthwith.3
Petition for habeas corpus granted.4