The Fourth District Court of Appeal reversed two findings of contempt by Broward Circuit Judge against litigants. Photo: ANURAK PONGPATIMET/Shutterstock.com.

The Fourth District Court of Appeal has reversed two findings of contempt in family law cases before Broward Circuit Judge Nicholas Lopane, finding the judge hadn't followed all the necessary steps before incarcerating the litigants.

One of the cases juxtaposed due process and a judge's responsibility for courtroom safety.

The appellate panel said it was bound by law to make the reversals. But it appeared to empathize with Lopane in one opinion, highlighting a need for judges to be able to temporarily detain litigants for safety reasons before continuing with due process.

In that case, father Joseph Manzaro was found in criminal contempt of court and detained for three hours after repeated uncontrollable interruptions and outbursts during a custody dispute, according to Wednesday's appellate opinion.

But his detention was a violation of Florida Rule of Criminal Procedure 3.830 because the trial judge hadn't given Manzaro the opportunity to argue against it, the panel found.

At the same time, the appellate court said it didn't see "how it would have been reasonably possible" for Lopane to have followed that rule without risking the safety of deputies, onlookers and the litigant himself.

The opinion straddled a line.

It recognized "the unique power exercised in direct criminal contempt proceedings must be used only rarely and with circumspection." But it also asked the Florida Bar's Criminal Rules Committee to consider proposing to the state Supreme Court an amendment to the rules of criminal procedure that would allow judges to temporarily detain litigants for safety reasons before continuing with due process ⁠— a suggestion that has the support of a South Florida chief judge.

"It should come as no surprise that judges, like the judge in this case, instinctively act to preserve safety by having the uncontrollably aggressive person immediately removed from the courtroom to prevent imminent violence," the opinion said, later adding, "It also should come as no surprise that while trying to preserve safety, a judge may be unable to comply with Rule 3.830′s mandatory inquiries without putting safety in jeopardy."

But Manzaro maintained that his "outburst" was not violent, and claims that his 9-year-old son, whom he hasn't seen since he was a toddler, was unlawfully taken from him. His attorney Guillermo Farinas in Palm Beach made allegations of criminality against the judge.

Lopane, who moved to the civil division in January, said there is a need to reconcile this issue.

"It was pretty much chaos in the courtroom, so the procedure, I think, needs to be addressed," Lopane said. "It was an out-of-control situation."

 

They 'felt the pain'

Chief Broward Circuit Judge Jack Tuter said he hopes the committee takes up the issue because courts have long grappled with it, particularly in family cases.

"The first thing that the judge has responsibility for in the courtroom, before he even deals with a direct criminal contempt-type case, is the safety of everybody in the courtroom," Tuter said.

Chief Broward Circuit Judge Jack Tuter. Photo: J. Albert Diaz/ALM.

Tuter said that on the rare occasion a judge should attempt to use contempt as punishment, complying with strict procedural rules is a difficult balancing act when there's an eruption of emotion and activity in the courtroom.

"You have to balance, what is the behavior? Is it truly contemptuous behavior? Or is it somebody acting like a knucklehead and you just say, 'Deputies, get them out of here,' and hopefully that settles down the courtroom," Tuter said.

Fourth DCA Judge Jonathan Gerber wrote the opinion in the appellate case, backed by Judges Dorian Damoorgian and Cory Ciklin.

"You could see from the case that it was being written by three judges who were prior trial judges, so they understood, and you could see that they kind of felt the pain of the trial judge as to what to do when someone acts up like that," Tuter said.

Opposing counsel Megan Wells of Wells Law Firm in Miami Lakes did not respond to a request for comment by deadline, but in 2017 claimed the case drove her to seek a restraining order and buy a stun gun for protection.

 Related story: How Restraining Orders, Stun Guns Heralded the Launch of a Law Career

A second reversal

Separately, the Fourth DCA on Wednesday also reversed Lopane's finding in a suit in which the judge had found litigant Marco Perez guilty of civil contempt in a divorce case for failing to make court-ordered alimony payments.

Seven days after an evidentiary hearing in that case, Lopane had Perez jailed for not paying a purge amount of $87,673, according to the opinion. The problem? Lopane hadn't first established that the litigant could actually afford to pay that, as required by Florida Family Law Rules of Procedure 12.615(e).

Perez's attorney Jose Bofill of the Bofill Law Group in Miami noted that unlike criminal contempt, the threat of civil contempt is less about punishment and more about coercing compliance with an order. He said this means that in order for his client to have been found in civil contempt, the court must have first determined Perez had the ability to comply.

"Let's say you owe $100," Bofill said. "Well, the judge won't put you in jail on civil contempt unless you have $100. They're not there to punish you, to say, 'It doesn't matter if you have $100 or you don't have $100.' … The only time they put you in jail is when they find you have $100, you just don't want to pay it."

Bofill claims his client, a Venezuelan national, can't legally bring the money required of him into the U.S. because of political turmoil at home. Bofill said the judge therefore should have sought another route to enforce compliance with the court order.

"To issue an order that he be arrested without the ability to pay is erroneous as a matter of law," Bofill said.

Opposing counsel Kevin Colbert in Miami did not respond to a request for comment by deadline.

 

More appeals:

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