IN THE INTEREST OF P.A.G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, APPELLEE
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Appellant challenged a civil contempt order for nonpayment of child support, arguing both that the underlying support order was deficient and that the contempt order improperly provided for prospective incarceration. The court affirmed the validity of the support order but reversed the contempt order because the trial court failed to make a separate, affirmative finding that the appellant had present ability to pay before authorizing incarceration.
The trial court's support order was valid, but the contempt order must be reversed and remanded because civil incarceration for contempt requires a separate, affirmative judicial finding that the contemnor possesses present ability to comply with the purge conditions, which was not made in this case.
[1] A civil contempt order requiring payment of child support arrearages is valid when based on a prior support order that creates a presumption of ability to pay and the obl…
[2] A court may not prospectively order incarceration for failure to pay child support arrearages in a civil contempt order without first making an affirmative finding that t…
Previewing 2 of 3 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“Where a court proceeds on the basis of civil contempt, if incarceration is to be considered, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with purge provisions of the contempt order.”
Establishes the critical requirement that courts must affirmatively find present ability to pay before imposing incarceration in civil contempt for child support nonpayment.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellant was ordered to pay child support. He accumulated an arrearage of $1,600. A contempt order was issued requiring him to pay at least $400 …
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NIMMONS, Judge.
Appellant appeals from an order adjudging him in civil contempt for failure to make child support payments as previously ordered and requiring the appellant to make payment of at least $400 towards the $1600 arrearage within thirty days from the date of the contempt order in default of which an order would issue for appellant’s incarceration.
Appellant attacks the contempt order on the ground that the support order upon which it was based was deficient in several respects. We disagree and affirm as to that issue. However, we agree with appellant’s additional argument which attacks the validity of the order insofar as it prospectively provides for his incarceration in the event he fails to pay $400 within a thirty-day period.
It is true (1) that the original support order created a presumption that the appellant had the ability to pay, thus placing a burden upon the appellant to establish that he did not have the ability to pay, Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985), and (2) that the appellant failed to dispel such presumption of ability to pay. However, as pointed out in Bowen, more is required before the court is authorized to incarcerate the defaulting party. Where a court proceeds on the basis of civil contempt, if incarceration is to be considered, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with purge provisions of the contempt order. Id. at 1279. No such determination of the appellant’s present ability to pay was made in the instant case.
In view of our holding herein, we do not reach the remaining issues raised by the appellant.
The appealed order is reversed and the cause is remanded for further proceedings consistent with this opinion.
MILLS and ERVIN, JJ., concur.
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Citator
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)