RICHARD J. FILAN, APPELLANT,
v.
MARY T. FILAN, APPELLEE
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A husband appeals a contempt of court order for failing to pay off a second mortgage on the marital home awarded to his wife in a divorce dissolution. The court reversed, holding that the mortgage obligation constitutes a property settlement rather than a support obligation, and therefore cannot be enforced through contempt proceedings.
The court held that the obligation to pay off the second mortgage is in the nature of a settlement of property rights rather than a support obligation, and therefore the contempt power of the court cannot be invoked to enforce it.
[1] A court cannot invoke contempt powers to enforce an obligation that is in the nature of a property settlement.
[2] The distinction between obligations enforceable by contempt and those not enforceable by contempt lies in whether the payments involve an exchange of financial rights or…
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Join FLexlaw to unlock all legal intelligence“If an obligation is in the nature of settlement of property rights as opposed to alimony, support or maintenance of one to whom the duty is owed, the contempt power of the court cannot be invoked.”
Establishes the foundational legal test distinguishing between property settlements and support obligations
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage, the trial court awarded the marital home to the wife as equitable distribution and made the husband responsible for payi…
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GUNTHER, Judge.
The husband appeals an order adjudicating him in contempt of court for failing to pay off the second mortgage on the marital home which was awarded to the wife by the final judgment of dissolution of marriage. We reverse.
The husband asserts that the trial court erred in holding him in contempt for failing to pay off the second mortgage because the obligation is in the nature of a property settlement. If an obligation is in the nature of settlement of property rights as opposed to alimony, support or maintenance of one to whom the duty is owed, the contempt power of the court cannot be invoked. Pabian v. Pabian, 480 So. 2d 237 (Fla. 4th DCA 1985). According to Pabian, in examining obligations to see if contempt proceedings are permitted, the test is whether the payments involve an exchange of financial rights or obligations as opposed to payments that serve to discharge the party’s duty to support the other party and the children. If the former, then the obligation is in the nature of a settlement of property rights; the latter concerns payments considered to be alimony or support, which are enforceable by contempt. Pabi-an, 480 So. 2d at 238.
In the instant case, the husband’s obligation to pay off the second mortgage on the marital home is in the nature of a settlement of property, rather than an obligation for support. Although the wife sought lump sum alimony and equitable distribution, the trial court did not award her any lump sum alimony. Instead, the trial court granted her request for equitable distribution of the marital assets. The final judgment contained the following paragraphs:
2. As equitable distribution of the marital assets the Wife is awarded the Husband’s interest in the marital home (item 1 on Wife’s exhibit # 2) and the Wife shall be responsible for the first mortgage on said property. The Husband shall be responsible for paying off the second mortgage on said property.
3. As further equitable distribution the Wife is awarded item 4 on Wife’s exhibit # 2 (silver bars in her possession) and a judgment against the Husband in the amount of $50,000.00 for which let execution issue. 4. As equitable distribution the Husband is awarded all marital assets in paragraphs 2 & 3 of Wife’s exhibit # 2.
Thus, in the context of the final judgment, the husband’s obligation to pay off the second mortgage is inextricably interwoven with the equitable distribution of the marital assets.
Since the husband’s obligation to pay off the second mortgage in the instant case was in the nature of settlement of property rights and not support, the contempt power of the trial court was erroneously invoked. Accordingly the trial court’s order finding the husband in contempt is reversed.
REVERSED AND REMANDED.
DELL and GARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Whelan v. Whelan, 736 So. 2d 732 (Fla. 4th DCA 1999)…or maintenance of the former wife. “If an obligation is in the nature of settlement of property rights as opposed to alimony, support or maintenance of one to whom the duty is owed, the contempt power of the court cannot be invoked.” Filan v. Filan, 549 So. 2d 1105 (Fla. 4th DCA 1989) (citing Pabian v. Pabian, 480 So. 2d 237 (Fla. 4th DCA 1985)). The en [*734] forcement through contempt of debts not involving support violates Article I, section 11 of the Florida Constitution, the provision prohibiting imprison…
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Braswell v. Braswell, 881 So. 2d 1193 (Fla. 3d DCA 2004)…tempt proceedings and incarceration. Equitable distribution awards or property division awards are debts which cannot be enforced by contempt proceedings or incarceration. See Hertrich v. Hertrich, 643 So. 2d 115 (Fla. 5th DCA 1994); Filan v. Filan, 549 So. 2d 1105 (Fla. 4th DCA 1989). The remedies available to enforce an equitable distribution or property division award are those available to creditors against debtors. See Veiga v. State, 561 So. 2d 1335, 1336 (Fla. 5th DCA 1990). In addition, marital settle…
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Reed v. Reed, 914 So. 2d 26 (Fla. 4th DCA 2005)…ortgage, and $20,199.14 towards the third mortgage. We have consistently held that a former spouse’s obligation to make mortgage payments is in the nature of a settlement of property rights, rather than an obligation for support. See Filan v. Filan, 549 So. 2d 1105 (Fla. 4th DCA 1989) (holding that because the former husband’s obligation to pay off a mortgage was in the nature of settlement of property rights and not support, the contempt power of the trial court was erroneously invoked); Mandy v. Williams, 49…
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- Pabian v. Pabian, 480 So. 2d 237 (Fla. 4th DCA 1985)