IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-8. Petitioner, On Discretionary Review from the Third District Court of Appeal Case No.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-8 MONTGOMERY BLAIR SIBLEY, vs. Petitioner, On Discretionary Review from the Third District Court of Appeal Case No. 3D BARBARA SIBLEY, Respondent. / PETITIONER'S BRIEF ON JURISDICTION (With Separately Bound Appendix) By: G. BART BILLBROUGH, ESQ. Counsel for Petitioner Douglas Centre 2600 Douglas Road, Suite 902 Coral Gables, Florida Tel: (305) Fax: (305)

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 4 ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN Sibley v. Sibley, 2002 WL (Fla. 3d DCA 2002), DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE SAME QUESTIONS OF LAW CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i-

3 TABLE OF AUTHORITIES Cases Page Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985)... Passim Gregory v. Rice, 727 So.2d 751 (Fla. 1999)... 8 Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988)... 9 International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994)... 9 Israel v. Jenne, 814 So.2d 1215 (Fla. 4 th DCA 2002)... 8 Israel v. Jenne, 820 So.2d 336 (Fla. 4 th DCA 2002)... 8 Keegan v. Lawrence, 779 F. Supp. 523 (S. D. Fla Perez v. Perez, 599 So.2d 682, 683 (Fla. 3d DCA 1992)... 7 Russell v. Russell, 559 So.2d 675 (Fla. 3d DCA 1990)... 7 Sibley v. Sibley, 2002 WL (Fla. 3d DCA 2002)... Passim Rules Fla. Fam. L. R. P (2002)... 1, 3, 4, 8 -ii-

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5 STATEMENT OF THE CASE AND FACTS In this case, Petitioner Montgomery Blair Sibley 1 is incarcerated on an ongoing basis pursuant to a nominal order of civil contempt of court arising out of the failure to pay child support obligations. The trial judge found the former husband in contempt, incarcerated him for an indefinite period of time, and set an ability to pay purge amount of $100, Upon incarceration, the Petitioner appealed to the District Court of Appeal of Florida, Third District. In the appellate court, Petitioner challenged the incarceration order on two overarching bases. First, the Petitioner urged that he had been unlawfully incarcerated insofar as the incarceration order failed to set forth the basis for the trial court finding that Petitioner had the ability to pay the $100, purge amount, in violation of the plain dictates of Fla. Fam. L. R. P (e). Second, Petitioner argued, notwithstanding the facial deficiency of the incarceration order itself, the incarceration order was unsupported by any substantial or competent evidence that demonstrated Petitioner himself had the ability to pay the purge sum. On appeal, the Third District, in a split decision, affirmed. (A. 1-15). Addressing first the issue of the lack of record evidence argument, the Sibley majority held: 1 The Petitioner is the respondent in the trial court, was the appellant in the Third District, and will be referred to as Petitioner or by name. The Respondent, Barbara Sibley, is the petitioner in the trial court, was the appellee in the Third District, and will be referred to as Respondent or by name. References to the appendix will be designated by the letter A. All emphasis is supplied unless otherwise indicated.

6 [T]he record demonstrates Sibley may command, simply by asking, the payment of the purge amount through his very wealthy father who has in effect given many hundreds of thousands of dollars to Mr. Sibley for any and every purpose except the discharge of this particular obligation. (A. 1-2). In a footnote to this very section of the opinion, the Sibley majority conceded the record showed Petitioner did not have assets in his own name in the purge amount. (A. 2, fn. 2). After citing past payments from the Petitioner s father to his son, noting that the Petitioner s father presently refused to pay his son s child support obligation, and referencing the expense of the appellate proceedings themselves, the Sibley majority held: (A. 3-4). In these circumstances, which demonstrate the very epitome of a wilful, contemptuous refusal to obey a binding order of court, the rule that all sums from whatever source available to the contemnor-obligor must be considered to determine his ability to pay is particularly relevant. [Citations omitted]. Its application compels the rejection of the appellant s argument that, on the merits, he should not be in jail for civil contempt. In our judgment, he is in the right place for the right reason. In light of its finding that the record supported incarceration on the father s ability to pay the purge amount, the Sibley majority rejected Petitioner s argument concerning the defects in the incarceration order itself: -2-

7 In the light of this conclusion, we consider that the appellant s other point, which claims defects in the orders below, see Fla. Fam. L. R. P (2002), does not present harmful error. (A. 4). Judge Gerald Cope dissented. (A. 5-14). The dissent noted the incarceration order was entered on the theory that Petitioner had sufficient personal assets to sell so as to obtain the $100, purge amount. Since the record did not support that proposition, the dissent stated the incarceration order should be reversed and proceedings remanded to set a proper purge amount or condition. (A. 5; 14). The dissent noted the majority opinion conceded the basis for reversal when it found Sibley did not himself have assets in the purge amount. Regarding the stated basis for affirmance Petitioner s father s ability to pay the dissent observed that it was not the stated basis for incarceration by the trial judge and the theory was not properly first considered by the trial court. (A. 9-10). If the issue is one of intentional underemployment or divestiture of assets, the remedy is indirect criminal contempt, not civil contempt. As such, the dissent concluded the incarceration order should be reversed and the cause remanded to set an appropriate purge amount or condition. (A. 14). This petition for discretionary review ensued. -3-

8 SUMMARY OF THE ARGUMENT The Sibley majority opinion expressly and directly conflicts with Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) on the same points of law. In Sibley, the Third District concedes Petitioner does not have assets sufficient to satisfy the incarceration order s purge amount, yet still upholds an indefinite civil contempt incarceration. Under Bowen, this is not permitted. The conflict is direct, express, and appears on the face of the Sibley opinion. Sibley holds Petitioner may remain incarcerated because he can obtain the purge funds simply by asking his very wealthy father to pay the obligation. Bowen holds, however, that the contemnor must have the present ability to pay, and the courts may look only to all of contemnor s financial resources to make this determination. This Sibley holding represents yet another conflict with Bowen. Additionally, the Sibley holding conflicts with decisions of other courts concerning whether the failure to follow the requirements of Fla. Fam. L. R. P (e) may be subject to a harmless error analysis. -4-

9 ARGUMENT THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN Sibley v. Sibley, 2002 WL (Fla. 3d DCA 2002), DIRECTLY AND EXPRESSLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE SAME QUESTIONS OF LAW. On the subject of contempt citations in family law proceedings, this Court s decision in Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985), establishes the ground rule standards. This Court has established that "the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor s key to his cell. " Bowen, 471 So.2d at 1277 (Fla.1985)(emphasis in original). Where incarceration is under consideration, there must be "a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order." Id. at 1279 (emphasis added). In making that determination, this Court has held the trial court may look to all of the contemnor's assets from which the amount might be obtained. Id. (Emphasis added). The Sibley majority opinion expressly and directly conflicts with Bowen on these same points of law. In Sibley, the Third District admits in footnote 2 that Petitioner does not have assets sufficient to satisfy the incarceration order s purge -5-

10 amount of $100,000.00, yet still upholds an indefinite civil contempt incarceration. Under Bowen, this is not permitted. Without a showing of resources at the contemnor s disposal in the amount of the purge sum, incarceration cannot occur. The conflict is direct, express, and appears on the face of the Sibley opinion. Further, Sibley s conflict with Bowen is facially evident. Despite a lack of personal resources, Petitioner may remain incarcerated because he can obtain the purge funds simply by asking his very wealthy father to pay the obligation. (A. 1-2). 2 Bowen holds, however, that the contemnor must have the present ability to pay, and the courts may look only to all of contemnor s financial resources to make this determination. Bowen, 471 So.2d at 1279 ( We continue to adhere to the view that incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door. )(Emphasis added). The Sibley majority opinion represents an ironic deviation from the Third District s own holdings that have applied Bowen to reach a different result than the 2 On this issue, the trial court record reflects a stipulation recognizing Petitioner has asked his father to pay the subject financial obligation, and a stipulation recognizing the Petitioner s father refuses to do so. These stipulated facts make the Third District s holding that Petitioner may secure his freedom from incarceration simply by asking his very wealthy father to pay all the more disingenuous. (A. 2). In this regard, the opinion is therefore inherently conflicting and contradictory. -6-

11 case at bar on identical facts. In Russell v. Russell, 559 So.2d 675 (Fla. 3d DCA 1990), a case involving incarceration for failure to pay alimony and child support, the Third District followed Bowen and held: In the present case it appears the trial court based its finding of present ability to pay, and possibly the finding of contempt, on the theory that Russell could obtain another loan or gift from his relatives. Under Bowen, the inquiry must be directed to the contemnor s own assets, not those of his relatives. There must, therefore, be a new hearing. Russell, 559 So.2d at 676. See also Perez v. Perez, 599 So.2d 682, 683 (Fla. 3d DCA 1992)( In the present case, it appears the trial court based its finding of present ability to pay, and the finding of contempt, on the general master s outrageous theory that Perez could obtain a loan from his relatives... It is clear that under Bowen, the instant inquiry must be directed to the contemnor s own assets, not those of his relatives. Thus, there must be a new hearing. ). Crucial to this Court s decision in Bowen is the overarching principle that the incarcerated party must hold his own key to the jailhouse door. Under the Third District s Sibley holding, however, that is not the case. In Sibley, the incarcerated party does not hold the key. The Sibley mechanism for purge that Petitioner can simply ask his very wealthy father to pay the purge amount has nothing to do with Petitioner s ability to pay, and everything to do with his father s ability to pay. And the true irony here, of course, is that the facts, as stipulated to in the trial court -7-

12 and as referenced in the Third District s opinion, demonstrate the request has been made by the Petitioner and refused by the father. Under the Sibley holding, the Petitioner does not hold the key. The Sibley opinion also conflicts with Israel v. Jenne, 814 So.2d 1215 (Fla. 4 th DCA 2002), and Israel v. Jenne, 820 So.2d 336 (Fla. 4 th DCA 2002), on the interpretation and application (or non application) of Fla. Fam. L. R. P (e). The Sibley majority found the incarceration order s failure to set forth the factual basis for the trial court s conclusion of an ability to pay was harmless error. (A. 4). In the Israel decisions, the Fourth District held that where the trial court order does not set forth the factual basis for the affirmative finding of a present ability to comply with the purge amount as required by Rule (e), reversal is warranted without regard to any appellate examination of the record to make a determination of whether factual support exists and without regard to any harmless error test. As such, Sibley conflicts with the Israel decisions, as well as with Gregory v. Rice, 727 So.2d 751 (Fla. 1999), on this second point. Ultimately, the Sibley decision below and, quite frankly, the events in the trial court raise the fundamental question of whether the Petitioner is currently jailed for civil or criminal contempt. The labels affixed either to the proceeding or to the relief imposed under state law below are not controlling and should not be allowed to defeat the applicable due process protections of both state and federal constitutional law. -8-

13 Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988); International Union, United Mine Workers v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). The Third District s citation to Petitioner s past appeals, present representation by counsel, past financial dealings with his father, alleged underemployment, unspecified substantial assets, and the like strongly suggest the incarceration is criminal and that punishment has been the goal here, not coercion. With the proceedings effectively being criminal in nature, the attendant state and federal constitutional due process protections afforded to those charged with crimes have not been afforded. Regardless of the mechanism s name, be it civil or criminal contempt, the analysis employed to date by the trial court and Third District has resulted in a deprivation of those state and federal constitutional rights. The underlying premise for the Sibley ruling that a family member can or should be responsible for their child s, brother s, or sister s financial obligations in dissolution proceedings represents a fundamental shift in the Florida courts historical treatment of these issues. Under Sibley, one can be incarcerated at least in the Third District for an inability to pay when another has the financial ability to satisfy the obligation, but refuses to do so. This issue must be deemed one of paramount concern to our trial and appellate judges, our law practitioners, and most importantly, the citizens of Florida. From a public policy perspective, the foregoing -9-

14 sets forth a very significant reason for this Court to exercise its discretionary jurisdiction to hear this case. There is, however, an even more important policy reason why this Court should elect to hear this case. The courts, both state and federal, have long recognized that an individual s liberty interest is of tantamount importance in a constitutional democracy. See, Bowen; Keegan v. Lawrence, 779 F. Supp. 523 (S. D. Fla. 1991). There is no more cherished right we have. Resolution of the conflict in our state s court decisions concerning any circumstances under which a person may be deprived of that precious right of personal freedom should be of the utmost concern. The questions raised by the Third District s Sibley decision are ones which must be addressed by our state s highest court. CONCLUSION Based upon the foregoing rationale and authorities, there exists conflict jurisdiction for appellate review in this Court, and the Petitioner, Montgomery Blair Sibley, respectfully submits that this Court exercise its discretionary jurisdiction in this matter to review the conflict in the decisions discussed herein. -10-

15 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was faxed or hand delivered, and mailed this th day of January, 2003 to: Bette Ellen Quiat, Esq., Counsel for Respondent Barbara Sibley, 8525 S.W. 92d Street, Suite B-5, Miami, Florida 33156; Jay M. Levy, Esq.; Jay M. Levy, P.A., Counsel for Respondent Barbara Sibley, 9130 South Dadeland Boulevard, Suite 1510, Miami, FL 33156; and Dirk Lorenzen, Esq., Caruana & Lorenzen, Counsel for Guardian, Suite 1000, 44 West Flagler Street, Miami, Florida Roman 14pt. CERTIFICATE OF COMPLIANCE I hereby certify that the foregoing Answer Brief was typed in Times New Attorneys for Petitioner Douglas Centre 2600 Douglas Road, Suite 902 Coral Gables, Florida Tel: (305) Ext. 105 Fax: (305) By: G. BART BILLBROUGH Fla. Bar No.: T:\BRIEFS\Briefs - pdf'd\03-8_jurisini.wpd -11-