PERRY R. CONNOLLY, APPELLANT,
v.
DEBORAH A. CONNOLLY, APPELLEE
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Perry Connolly appealed a civil contempt finding for failure to pay $1,800 monthly alimony. The court reversed because the trial court failed to separately find that Connolly had the present ability to pay the purge amount before ordering incarceration, a requirement established in Bowen v. Bowen.
The trial court must separately find and document in its written order that the contemnor has the present ability to pay the purge amount before ordering incarceration. The trial court's failure to make this finding requires reversal and remand for further proceedings.
[1] A civil contempt order imposing incarceration for failure to pay alimony requires a separate finding that the contemnor has the present ability to pay the purge amount.
[2] The purpose of civil contempt is to obtain compliance with a court order, and incarceration should only be used when the contemnor has the ability to comply.
Previewing 2 of 5 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“if 'contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order.'”
Establishes the mandatory requirement that trial courts must separately find ability to pay before ordering incarceration in civil contempt cases
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Join FLexlaw to unlock all legal intelligenceConnolly and his ex-wife were divorced in April 1985 with an order requiring him to pay $1,800 monthly alimony. He complied for three years, then ceas…
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HALL, Judge.
Perry R. Connolly appeals from the order of the trial court which finds him in civil contempt for failure to pay alimony. He argues that the trial court failed to make a finding that he had the present ability to pay the purge amount of alimony due before imposing incarceration. We reverse.
The parties were divorced in April 1985. The final judgment of dissolution of marriage required the appellant to pay $1800 permanent periodic alimony per month to the appellee. The appellant complied with the final judgment and paid alimony for three years; thereafter, he ceased making the payments.
The appellee sought enforcement of the alimony provisions of the final judgment by filing motions for civil contempt.
After hearing the motions, on October 19, 1988, the trial court entered an order finding the husband to be “in willful contempt of this Court’s Order dated April 10, 1985, because he has the ability to pay alimony pursuant to the alimony provisions contained in that Order and has willfully and intentionally refused to do so....”
In Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985), the supreme court discussed the proper procedure for establishing civil contempt in family support matters. It stated that the initial final judgment of dissolution is based upon a finding that the party has the ability to pay a specified amount of support or alimony. In a civil contempt hearing for failure to pay support or alimony, the movant must show that the party in default has failed to make the ordered payments. The burden then shifts to the defaulting party to show that, due to circumstances beyond his control which intervened since the time the final judgment was entered, he no longer has the ability to meet his support obligations. The trial court must then determine whether the evidence is sufficient to justify a finding that the defaulting party has willfully violated the court order. The supreme court further stated that if “contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order.” Id. at 1280. See also Garo v. Garo, 347 So. 2d 418 (Fla.1977).
[T]he purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to the order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to pay is the ‘key to his cell.’ (citation omitted).
Bowen at 1277.
In the present case, the trial court did not make a separate finding that the appellant had the present ability to pay the purge amount of $19,800 owed to the appel-lee. However, it ordered the appellant to pay the purge amount within sixty days or upon failure to do so the appellant would be confined to the county jail for sixty days following the issuance of an arrest warrant.
Since the trial court failed to make the appropriate finding in its written order that the appellant had the ability to pay the purge amount, and since the record before us does not contain a transcript of the proceedings reflecting evidence of the appellant’s ability to pay the purge amount, we must set aside the contempt order and remand this case to the trial court for further, proceedings. If on remand the trial court finds that the appellant had the ability to pay the purge amount and willfully disobeyed the final judgment, the court may find the appellant in civil contempt and incarceration may be imposed if the purge amount is not paid. Further, if the court finds that the appellant’s conduct in continually and intentionally violating an order of the court is such that it warrants punishment, a criminal contempt proceeding may be instituted. See Bowen at 1279.
Reversed and remanded with directions.
SCHOONOVER, A.C.J., HALL and THREADGILL, JJ., concur.
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Driggers v. Driggers, 127 So. 3d 762 (Fla. 2d DCA 2013)…ability to pay alimony. He bears the burden to show that he can no longer pay due to changed circumstances. See Kossmann v. Kossmann, 550 So. 2d 168, 169 (Fla. 2d DCA 1989) (citing Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985) and Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989)). Mr. Driggers met that burden with a substantial amount of unrebutted evidence. See id. The trial court abused its discretion when it denied Mr. Driggers’ motion to abate, terminate, or reduce alimony based on his substantial ch…
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Rocco James Napoli v. Napoli, 142 So. 3d 953 (Fla. 4th DCA 2014)…sented or any of the findings made by the trial court during the hearing. However, even without a transcript, we can still review the trial court’s written contempt order to make sure that it contains the required findings. See Connolly v. Connolly, 543 So. 2d 356, 357 (Fla. 2d DCA 1989) (remanding for further proceedings because the trial court failed to make a finding in its written order that appellant had the ability to pay the purge amount and there was no transcript of the proceedings reflecting appella…
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Kossmann v. Kossmann, 550 So. 2d 168 (Fla. 2d DCA 1989)…ption that he has the ability to pay. The burden then shifts to that party to show that he can no longer pay due to circumstances which have developed since the entry of the judgment. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989). The appellant did in fact introduce a substantial amount of evidence showing that he had become financially unable to meet the support obligations of the final judgment. This evidence was unrebutted, and was sufficient to overco…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Garo v. Garo, 347 So. 2d 418 (Fla. 1977)