VICTOR KOSSMANN, APPELLANT,
v.
MILDRED P. KOSSMANN, APPELLEE
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Victor Kossmann appealed a contempt order and jail sentence for failure to pay alimony. The Florida District Court of Appeal reversed, holding that incarceration for civil contempt requires a specific finding that the defendant has the present ability to comply with the purge conditions, which was absent here despite unrebutted evidence of financial inability.
The court reversed the contempt order and incarceration, holding that incarceration for civil contempt cannot be imposed absent a specific finding that the contemnor has the present ability to comply with the purge requirements, and the unrebutted evidence here affirmatively showed an inability to pay.
[1] A party seeking to enforce alimony payments through civil contempt must demonstrate the contemnor's present ability to comply with the purge conditions before incarcerati…
[2] A final judgment ordering alimony payments creates a presumption of the obligor's ability to pay, shifting the burden to the obligor to prove changed circumstances render…
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Join FLexlaw to unlock all legal intelligence“A final judgment of dissolution directing a party to pay alimony creates a presumption 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.”
Establishes the legal standard for alimony ability-to-pay and burden of proof
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a final judgment of dissolution on September 1, 1988, ordering Kossmann to pay $1,000 per month in permanent periodic alimony …
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THREADGILL, Judge.
Victor Kossman appeals an order holding him in contempt of court and sentencing him to jail for failure to pay alimony and arrearages. We reverse.
The final judgment of dissolution of marriage entered September 1, 1988, ordered the appellant to pay permanent periodic alimony of $1,000 per month. The judgment also ordered him to pay an arrearage in temporary alimony at the rate of $1,500 per month.
The appellant did not comply with any of the provisions of the judgment. A hearing officer heard the post-judgment motion for enforcement of support and entered findings and recommendations which were ratified and incorporated by the trial court in an order of contempt and commitment entered December 12, 1988. The trial court found the appellant in wilful contempt for failure to pay alimony and sentenced him to thirty days in jail to begin January 12, 1989, but provided that he could purge himself of contempt by paying $2,500 plus a clerk’s fee of $5.00 on or before January 12, 1989. Appellant’s motion for rehearing was denied.
The appellant argues that the trial court erred by finding him in contempt and by entering an order of incarceration when there was no evidence he had the ability to comply with the purge conditions. We agree.
A final judgment of dissolution directing a party to pay alimony creates a presumption 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 overcome the presumption created by the final judgment.
Furthermore, under Bowen, incarceration cannot be imposed for civil contempt, absent a specific finding that the contemnor has the present ability to comply with the purge requirements. 471 So. 2d at 1277. “Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor’s ‘key to his cell.’ ” Id.
Because the court made no findings regarding the appellant’s ability to pay the purge amount, and the record affirmatively shows an inability to pay, we reverse the order of contempt and commitment. See Connolly.
Reversed.
LEHAN, A.C.J., and ALTENBERND, J., concur.
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Driggers v. Driggers, 127 So. 3d 762 (Fla. 2d DCA 2013)…civil contempt). Unquestionably, the final judgment of dissolution created a presumption that Mr. Driggers has the 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 i…
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Corwin A. Campbell v. Campbell, 679 So. 2d 366 (Fla. 4th DCA 1996)…remaining net income after payment of alimony and child support. We remand for further proceedings. See generally Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985); Phillips v. Phillips, 588 So. 2d 9 (Fla. 2d DCA 1991; Kossmann v. [*367] Kossmann, 550 So. 2d 168 (Fla. 2d DCA 1989). As to all other issues, we affirm. GLICKSTEIN, STONE and GROSS, JJ., concur.…
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Phillips v. Phillips, 588 So. 2d 9 (Fla. 2d DCA 1991)…s entered, he no longer has the ability to meet his support obligations.” Bowen v. Bowen, 471 So. 2d 1274, 1278-79 (Fla.1985). Unrebutted, substantial evidence presented by the obligor is sufficient to overcome the presumption. Kossmann v. Kossmann, 550 So. 2d 168 (Fla. 2d DCA 1989). Applying these tests to the present case, it is abundantly clear that the trial court’s conclusion that on the date of the hearing the appellant had a present ability to pay the amounts in arrears is totally unsupported by the re…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989)