ROMA SMITH, APPELLANT,
v.
MARY LOUISE MILLER AND THE STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEES
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Roma Smith was held in contempt and imprisoned for nonpayment of child support. The court reversed because the trial court failed to make an explicit finding that Smith had the present ability to pay the purged amount at the time of incarceration, which is required before civil contempt imprisonment can be imposed.
The trial court's contempt order must be reversed because it lacked the required affirmative finding of present ability to pay at the time of incarceration. Without such a finding, the imprisonment operates as criminal punishment rather than civil coercion, requiring compliance with Rule 3.840, Florida Rules of Criminal Procedure, including protections the appellant did not receive.
[1] A finding of present ability to pay is required to commit a contemnor to jail for failure to make child support payments.
[2] Imprisonment for non-payment of child support transforms from civil to criminal contempt absent an affirmative finding of present ability to pay the purge amount.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“cannot be committed to jail unless there is also an affirmative finding based upon evidence in the record that at the time of incarceration the contemnor has the ability to make payment of the purge amount”
Establishes the critical requirement for civil contempt imprisonment—present ability to pay at time of incarceration, not merely past ability
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Join FLexlaw to unlock all legal intelligenceSmith was ordered to pay child support arrearages totaling $491.50, with $291.50 ordered paid on April 20, 1983. The trial court found Smith had previ…
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SMITH, Judge.
Appellant urges the existence of several errors and deficiencies in the hearing process which resulted in his adjudication for contempt and subsequent imprisonment for non-payment of his child support obligations as previously ordered by the court. We have duly noted appellant’s arguments and contentions along this line and would agree that the entire process below appears to leave much to be desired. For one thing, the attorneys’ discharge of their duties and review by this court has been hampered by the use of a mechanical recording device, instead of a court reporter, with the result that portions of the testimony and proceedings below are transcribed as simply “(unintelligible).”
We find it unnecessary, however, to dwell upon other issues because we find one fatal defect which requires reversal. Although the court’s April 20, 1983, contempt order recites that appellant “had and has an ability to comply with the order of this court and failed to do so,” when this finding is viewed in the light of the evidence presented and the statements by the trial court at the hearing, we cannot construe it to mean that appellant, at the time of the hearing, had the present ability to make the payment of $291.50 (the portion of total arrearages of $491.50 ordered paid that day) required in order to avoid going to jail, or to secure release afterwards. It is patently obvious that the trial court based the contempt order upon the premise that appellant previously had the ability to comply with the court order but divested himself of that ability through his own fault or neglect designed to frustrate the intent and purpose of the support order. Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976); Ponder v. Ponder, 438 So. 2d 541 (Fla. 1st DCA 1983), petition for review denied, 447 So. 2d 887 (Fla.1984); Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA 1984).
As explained in this court’s Ponder decision, supra, decided subsequent to the proceedings here reviewed, while this finding (the so-called “second prong” of the Faircloth test) is sufficient for the court’s initial determination that contempt has occurred, the contemnor, “cannot be committed to jail unless there is also an affirmative finding based upon evidence in the record that at the time of incarceration the contemnor has the ability to make payment of the purge amount.” Ponder, supra, 438 So. 2d at 543. Absent such a finding of present ability to pay and thus secure release from custody, the proceeding is transformed from civil to criminal contempt, because the imprisonment operates to punish, rather than coerce payment. Full compliance with Rule 3.840, Florida Rules of Criminal Procedure, applying to indirect criminal contempt, is a necessary prerequisite to a sentence imposed for punishment of the contemnor. See, also, Bowen v. Bowen, supra. Although appellant was represented by counsel in this proceeding below, appellant did not have the benefit of the additional protections afforded by the rule, including an order stating the essential facts constituting the criminal contempt charged, the right to compulsory attendance of witnesses, and other important safeguards. That appellant, in fact, was without means to pay for his release is further indicated by the trial court’s subsequent order adjudicating him insolvent for the purpose of filing an appeal to this court. See, Andrews v. Walton, 428 So. 2d 663 (Fla.1983).
The order appealed from is REVERSED.
WIGGINTON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)…the ability to pay, there is no indigency, and if the parent is indigent, there is no threat of imprisonment. 428 So. 2d at 666. We find the decisions of the First District in Griffin v. Griffin, 461 So. 2d 251 (Fla. 1st DCA 1984); Smith v. Miller, 451 So. 2d 945 (Fla. 1st DCA 1984); and Ponder v. Ponder, 438 So. 2d 541 (Fla. 1st DCA 1983), and the Third District in Robbins v. Robbins, 429 So. 2d 424 (Fla. 3d DCA 1983), to be fully consistent with these holdings. The decision of the Third District in Waskin,…
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Griffin v. Selena Pearl Griffin, 461 So. 2d 251 (Fla. 1st DCA 1984)…s there is insufficient evidence in this record that he has the present financial ability to purge himself and therefore he cannot be committed to jail for civil contempt. We agree. Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA 1984); Smith v. Miller, 451 So. 2d 945 (Fla. 1st DCA 1984); and Ponder v. Ponder, 438 So. 2d 541 (Fla. 1st DCA 1983). Appellant’s sentence is REVERSED and the cause REMANDED for further proceedings as deemed necessary consistent with this opinion and the authorities cited herein. SMI…
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Nelson v. Nelson, 491 So. 2d 618 (Fla. 1st DCA 1986)…ut that is not what the order under review purports to do. We conclude, therefore, that the adjudication of contempt for nonpayment of all of the recited expenses is not in compliance with Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Smith v. Miller, 451 So. 2d 945 (Fla. 1st DCA 1984); and Ponder v. Ponder, 438 So. 2d 541 (Fla. 1st DCA 1983), pet. for review denied, 447 So. 2d 887 (Fla.1984), and must be reversed. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in accordance with this…
Authorities Cited
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- Lubin v. Dist. Court of Appeal, 428 So. 2d 663 (Fla. 1983)
- Torrez v. State, 438 So. 2d 541 (Fla. 2d DCA 1983)
- Bowen v. Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs., 454 So. 2d 565 (Fla. 2d DCA 1984)