PERNETTI v. PERNETTI (2020)

Marlen Pernetti (the “former wife”) petitions for a writ of certiorari, seeking relief from the trial court's order finding her in indirect criminal contempt for her failure to comply with prior orders and directing that she serve a weekend in the county jail, complete anger management, and pay a sanction toward the attorney's fees of Nino Pernetti (the “former husband”). We treat the petition as a plenary appeal because the order finds her guilty of indirect criminal contempt.¹ Because the trial court failed to comply with procedural requirements for indirect criminal contempt proceedings and deprived the former wife of the constitutional due process protections to which she is entitled, we reverse.

Indirect criminal contempt proceedings require strict adherence to Florida Rule of Criminal Procedure 3.840. See Bajcar v. Bajcar, 247 So. 3d 613, 618 (Fla. 3d DCA 2018). The former husband initiated the contempt proceeding by filing a motion seeking sanctions due to alleged violations of prior orders requiring, among other things, that both parties not disparage each other before their children. This motion was unsworn, and not accompanied by an affidavit. Thus, it was insufficient to support the court's subsequent order to show cause. See id. (citing De Castro v. De Castro, 957 So. 2d 1258 (Fla. 3d DCA 2007)). Here, “there is only the caption verified on the pleadings, followed by an acknowledgment, which is different than swearing to a fact.” Decoro v. State, 771 So. 2d 627, 628 (Fla. 3d DCA 2000). Finally, prior to the trial court's written pronouncement finding the former wife in contempt and sentencing her to incarceration, the court should have afforded her an opportunity to present evidence in mitigation of her conduct. See De Castro, 957 So. 2d at 1260-61.

Reversed.

FOOTNOTES

1.   See Int'l Med. Centers, Inc. v. Colavecchio, 563 So. 2d 784, 785 (Fla. 4th DCA 1990).

LOBREE, J.