OWEN D. GANZEL, PETITIONER,
v.
MARY M. GANZEL, SHERIFF J.E. 'JIM' MCMILLAN, AND HONORABLE BILL PARSONS, CIRCUIT JUDGE, RESPONDENTS
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The court held that a contempt order for failure to pay child support must include an affirmative finding that the contemnor has the present ability to comply with the purge conditions.
[1] A contempt order requiring incarceration is invalid without a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge cond…
[2] A writ of habeas corpus may be granted to challenge an incarceration order for contempt when the order lacks a required finding of present ability to pay the purge amount…
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Join FLexlaw to unlock all legal intelligenceFormer husband was found in contempt for failure to pay child support and sentenced to jail, with a purge condition. He appealed the incarceration ord…
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PER CURIAM.
Mary Ganzel, former wife, moved the circuit court of Duval County, Judge Bill Parsons, for an order finding her former husband in contempt of court for failure to pay child support. After a hearing, Owen Ganzel was found to be in contempt and sentenced to serve four months in the Du-val County jail, provided he could purge himself of contempt by payment of $1000 plus applicable service charges. Former husband then sought review in this court, filing a notice of appeal, an “appeal to vacate incarceration order” and a “motion for a supersedeas bond (emergency motion)”. We elected to treat these pleadings as a petition for writ of habeas corpus and directed respondent Mary Ganzel to show cause why relief should not be granted.1 We have now considered the response and find petitioner is entitled to relief.
Although former husband was questioned about his earnings and those of his present wife in the month prior to the hearing and the order of incarceration recites facts concerning those earnings, we find that this does not satisfy the requirement that the trial court make “a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order”, Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985). Accordingly, the petition for writ of habeas corpus is granted and respondent McMillan is directed to immediately deliver petitioner to a judge of the Fourth Judicial Circuit, Duval County, for a hearing on petitioner’s ability to pay the purge amount or to set a time for such hearing and for further proceedings as appropriate in light of the findings of that hearing. Petitioner is entitled to release until a finding is made of his present ability to pay the purge amount.
WRIT ISSUED.
MILLS, WENTWORTH and BARFIELD, JJ., concur. . We also named the trial judge and the sheriff of Duval County as respondents and gave them the option to file responses, an option which they declined to exercise.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)…s order, is unlawful, see Bowen ..., and [*1012] the petition for writ of habeas corpus must be granted.”) The first district treated an appeal from an order of contempt and incarceration as a petition for writ of habeas corpus in Ganzel v. Ganzel, 520 So. 2d 112 (Fla. 1st DCA 1988). There, the trial court recited evidence from a hearing conducted less than a month preceding the order of incarceration to determine that the contemnor had the present ability to pay the purge amount. The appellate court held th…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)