ERIKA MOSKOWITZ, APPELLANT,
v.
MARVIN MOSKOWITZ, APPELLEE
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The court reversed a civil contempt finding against the former wife because the trial court improperly used an alternative finding of willful divestiture of ability to pay, which is inappropriate in civil contempt proceedings, and the record did not clearly establish her ability to comply.
An alternative finding of willful divestiture of ability to pay is inappropriate in civil contempt proceedings and requires reversal when the record does not clearly reflect the defendant's ability to comply.
[1] In civil contempt proceedings, a trial court may not rely on an alternative finding that the defendant either has the ability to comply with a court order or willfully di…
Previewing 1 of 1 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“an alternative finding of willful divestiture of ability to pay may be appropriate in a criminal contempt proceeding, but not in a civil contempt proceeding”
The court distinguished between criminal and civil contempt proceedings regarding the propriety of alternative findings regarding ability to pay.
Erika Moskowitz was found in civil contempt by the trial court for allegedly violating a prior court order. The contempt order contained an alternativ…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We reverse to the extent that we find the order of the trial court defective-to wit: adjudicating the former wife to be in civil contempt. See Knowles v. Knowles, 522 So. 2d 477 (Fla. 5th DCA); rev. denied, 531 So. 2d 1354 (Fla.1988). The order contains an alternative finding that the wife either has the ability to comply with a prior order, or that she divested herself of the ability to comply in order to avoid compliance or to frustrate the court’s purpose. In Knowles, the court held that an alternative finding of willful divestiture of ability to pay may be appropriate in a criminal contempt proceeding, but not in a civil contempt proceeding. The Knowles court found the alternative finding involved therein to be harmless error, because the record reflected that the offending party clearly had the ability to pay the $75.00 in question. Here, we have a limited record and cannot say that it clearly reflects an ability to comply. Hence, unlike Knowles we cannot find the error harmless.
Accordingly, we reverse and remand the contempt order without prejudice to further contempt proceedings in accord with the appropriate rules of civil or criminal procedure. Such proceedings should include an evidentiary hearing. We affirm in all other respects.
ANSTEAD and STONE, JJ., and FENNELLY, JOHN E., Associate Judge, concur.
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Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990)…ntemnor does not have the present ability to purge himself. Id. at 1278—79; Scapin v. Scapin, 553 So. 2d 319, 320 (Fla. 1st DCA 1989); Paulk v. Braxton, 15 F.L.W. D535 (Fla. 1st DCA Feb. 26, 1990); Knowles, 522 So. 2d at 479; Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA 1989); Queener v. Queener, 495 So. 2d 269, 270 (Fla. 2d DCA 1986). If the court concludes that the respondent has willfully divested himself of the ability to pay, then that conduct may be punished by incarceration or otherwise in a cr…
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Rayburn Paulk v. Braxton, 562 So. 2d 699 (Fla. 1st DCA 1990)…earing that Paulk had intentionally divested himself of the ability to pay. If this were so, the proper remedy is a proceeding in criminal contempt, with the attendant procedural safeguards, rather than civil contempt, Bowen; Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA 1989). Finally, we address former wife’s contention that petitioner failed to join an indispensable party to these proceedings, her former counsel, who also obtained an order of enforcement on April 12, 1989, as to attorney fees due a…
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Vick v. Navarro, 567 So. 2d 495 (Fla. 4th DCA 1990)…PER CURIAM. We grant the habeas petition on the authority of Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA 1989), which is directly on point. In this case, as in Mos-kowitz, the form order used by the court had two boxes to check. The order states that “( ) the Respondent has the ability to comply with previous order(s) of this court and re…
Authorities Cited
- Knowles v. Knowles, 522 So. 2d 477 (Fla. 5th DCA 1988)