ROBERT R. WASKIN, APPELLANT,
v.
GLORIA WASKIN, APPELLEE
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In a contempt proceeding for willful nonpayment of alimony, an ex-husband claimed inability to pay due to expenses defending against criminal charges, including a murder conspiracy charge against the ex-wife. The court struck his testimony when he refused to answer whether he conspired to have the ex-wife killed, citing Fifth Amendment privilege, and held him in contempt. The appellate court affirmed, finding no Fifth Amendment violation when a defendant asserts a defense while refusing to answer questions critical to that defense.
The trial court did not violate the Fifth Amendment by striking the respondent's testimony. A party asserting a defense cannot simultaneously claim the Fifth Amendment privilege on questions critical to that defense; the availability of a defense does not violate the privilege against self-incrimination merely because asserting it requires breaking silence.
[1] A party seeking to avoid a support obligation by claiming inability to pay must prove that the inability is not due to their fault or neglect.
[2] A party asserting a defense in a contempt proceeding for failure to pay support cannot invoke the Fifth Amendment privilege against self-incrimination on a critical quest…
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Join FLexlaw to unlock all legal intelligence“In a contempt proceeding for failure to comply with a support order, the party in default has the burden of proving both (1) that he is unable to comply with the court's order to pay, and (2) that his inability to pay is not due to his fault or neglect but instead to circumstances beyond his control.”
Establishes the legal standard for contempt defense in support obligation cases, placing the burden on the defendant to prove inability to pay and lack of fault.
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Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1976. Years later, the ex-wife filed a contempt motion alleging the ex-husband willfully failed to pay alimony and support. Th…
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FERGUSON, Judge.
The parties were divorced in 1976. Several years later, petitioner/ex-wife filed a motion for contempt, alleging that respondent/ex-husband had willfully disobeyed a court order for payment of alimony and support.
Respondent claimed that he was unable to meet his support obligations because of heavy expenses incurred in defending himself against criminal charges. He was awaiting trial on a charge of conspiring to murder the petitioner. At the contempt proceedings petitioner called respondent as an adverse witness and asked respondent whether he had in fact conspired to have her killed, thereby seeking to avoid the support obligation imposed by the court. Respondent refused to answer, asserting a fifth amendment privilege. Petitioner thereupon moved to strike all of respondent’s testimony. The court granted the motion, refused to allow a proffer of respondent’s additional testimony, and refused to continue the hearing. The court then adjudged respondent in contempt and sentenced him to thirty days in jail. He appeals.
Petitioner contends here that her inquiry was relevant to show that respondent voluntarily created the condition which hampered his ability to comply with the court’s order. In a contempt proceeding for failure to comply with a support order, the party in default has the burden of proving both (1) that he is unable to comply with the court’s order to pay, and (2) that his inability to pay is not due to his fault or neglect but instead to circumstances beyond his control. Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976); Yandell v. Yandell, 160 Fla. 164, 33 So. 2d 869 (1948); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939).
In order to satisfy his burden in this case, respondent was required to dispel the inference that he was in willful noncompliance with the support order, by showing that he did not conspire to kill the petitioner. In State v. Buchman, 361 So. 2d 692, 695 (Fla.1978), our supreme court opined that the right against self-incrimination “has never been held to be violated by the availability of a defense, the assertion of which requires that the silence be broken.” Accord Williams v. Florida, 399 U.S. 78, 84, 90 S.Ct. 1893, 1897, 26 L.Ed.2d 446, 451 (1970) (that defendant faces a dilemma demanding a choice between complete silence and presenting ⅛ defense has never been thought an invasion of the privilege against self-incrimination).
It was therefore not error for the trial court to strike the respondent’s testimony inasmuch as the respondent had no right to have his testimony considered in support of his asserted defense herein and yet claim his fifth amendment privilege on a critical question concerning that defense. See Roberts v. Jardine, 358 So. 2d 588, 589 (Fla. 2d DCA 1978).
We find no merit in the remaining contentions of the respondent. The contempt judgment and sentence under review are therefore
Affirmed.
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Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)…e court-ordered support payments. The district court reversed the trial court’s judgment, concluding that due process required the appointment of counsel and other due process protections in such a proceeding. We find conflict with Waskin v. Waskin, 452 So. 2d 999 (Fla. 3d DCA 1984).1 For the reasons expressed, we agree with the district court that the record under review fails to establish that the respondent had the present ability to pay the arrearage and that, under the facts of this case, the respondent…
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Leone v. Weed, 474 So. 2d 401 (Fla. 4th DCA 1985)…ity to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order. Faircloth, 339 So. 2d at 651. See also, Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA 1984); Waskin v. Waskin, 452 So. 2d 999 (Fla. 3d DCA 1984); see generally, Comment, The Nonsupport Contempt Hearing: A Survey of Florida Law, 12 Fla.St.U.L.Rev. 117 (1984). The record in this case contains substantial evidence that the former husband previously had the ability to pay but…
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Atlas v. Atlas, 708 So. 2d 296 (Fla. 4th DCA 1998)…es, see, e.g., Kerben v. Intercontinental Bank, 573 So. 2d 976 (Fla. 5th DCA 1991), however, that does not and should not impinge upon the general rule. Fraser v. Security & Inv. Corp., 615 So. 2d 841, 842 (Fla. 4th DCA 1993). In Waskin v. Waskin, 452 So. 2d 999 (Fla. 3d DCA 1984), disapproved on other grounds, Bowen, 471 So. 2d at 1278, a husband was confronted with a contempt proceeding for failing to meet his support obligations. The wife contended that the husband had willfully evaded the order to pay s…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. Florida, 399 U.S. 78 (U.S. 1970)
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- Orr v. Morrison B. Orr, 141 Fla. 112 (Fla. 1939)
- Yandell v. Yandell, 160 Fla. 164 (Fla. 1948)
- Quick v. State, 361 So. 2d 692 (Fla. 1977)
- Roberts v. Jardine, 358 So. 2d 588 (Fla. 2d DCA 1978)