JAMES D. SCAPIN, APPELLANT,
v.
BARBARA ANN SCAPIN, APPELLEE
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A former husband appeals a civil contempt order and jail commitment for failure to pay child support and alimony. The appellate court reverses, holding that the trial court failed to make the required separate finding that the contemnor possessed present ability to comply with the purge condition, as merely imputing income is insufficient.
The court reversed and remanded, holding that a finding of present ability to pay for civil contempt must rest on a separate, affirmative determination that the contemnor possesses actual resources or assets that could be used to purge the contempt. A mere finding that the contemnor had financial ability based on previously imputed income is insufficient.
[1] A trial court must make a separate, affirmative finding that a civil contemnor possesses the present ability to comply with the purge conditions of a contempt order befor…
[2] A finding of present ability to pay in a civil contempt proceeding requires more than a prior imputation of income; it necessitates a determination that the contemnor has…
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Join FLexlaw to unlock all legal intelligence“the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.”
Establishes the scope of inquiry for determining ability to pay, but requires actual assets, not merely imputed income
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Join FLexlaw to unlock all legal intelligenceBy final judgment, the trial court imposed child support and rehabilitative alimony obligations on the former husband based on an imputed income of $2…
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SHIVERS, Chief Judge.
The former husband appeals from a contempt order finding him in civil contempt and ordering his commitment to jail unless he purges himself of contempt by remitting $1524.00 to the clerk of court. We reverse and remand.
By final judgment dissolving the parties’ marriage, the trial court imposed upon the former husband child support and rehabilitative alimony obligations based upon an imputed income of $24,000 per year. Subsequently, the former wife filed a motion for contempt and the trial court entered an order finding him in contempt pending his compliance with purge options to satisfy court ordered obligations. The former husband appealed.
We affirmed in Scapin v. Scapin, 547 So. 2d 1012 (Fla. 1st DCA 1989) noting, inter alia, the contempt order’s allowance that if the former husband failed to comply with the purge provisions, the former wife was free to file an affidavit of noncompliance and the court would order his commitment to custody. We upheld the court “provided that the trial judge and not the former wife determines whether the contemnor has failed to comply with purge provisions contained in its contempt order and whether the contemnor has the present ability to comply before incarceration is ordered.” Id. at 1014 (citing Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985)).
On September 8, 1989, following a motion by the former wife, the trial court entered a contempt order ordering the husband to be incarcerated for 60 days or until he sooner pays the purge amount on or before noon September 11, 1989. The court found that “the former husband had the financial ability to pay the child support and rehabilitative alimony previously ordered, based upon his imputed income of $24,000 per year, and willfully refused to do so.” The former husband appealed this order. The court’s finding that the former husband “had” the financial ability to pay “based upon his imputed income of $24,000 per year” falls short of the requirement set out in Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985) that the court make a separate, affirmative finding that the contemnor possesses the present ability to comply with the order’s purge conditions.
Implicit in the Florida Supreme Court’s analysis in Bowen, is that the notion of present ability to pay means that the contemnor have actual resources that could be used to purge himself of contempt. The court held that “[i]n determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.” Id. at 1279 (emphasis in original).
Conversely, if a civil contemnor is without any assets or cash to pay the purge amount, a trial court cannot jail him for civil contempt. A finding that a civil contemnor had an ability to pay based upon a previous judicial imputation of income to him is not tantamount to a finding that the contemnor is currently vested with actual resources with which to purge a contempt order. We REVERSE and REMAND for further proceedings consistent with Bowen.
ERVIN and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990)…as those mentioned in Bowen, 471 So. 2d at 1279. Where there has been a divestiture of assets incarceration cannot be selected as the remedy because the contemnor 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…
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Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990)…e unspecified). The order contains only a finding he “had the ability to pay the court ordered lump sum alimony payments.” This precise language (i.e. “had” ability to pay) has been held to be insufficient under the Bowen standard. Scapin v. Scapin, 553 So. 2d 319 (Fla. 1st DCA 1989). The order is also defective because it does not contain an express provision for purging any contempt after incarceration through payment of the ordered amounts. Civil contempt orders must always contain a provision permitting…
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Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992)…z had purposefully transferred certain assets to his father, who was also his employer. If, in actuality, Perez is vested with the actual resources with which to purge the contempt order, the remedy of incarceration may be ordered. Scapin v. Scapin, 553 So. 2d 319 (Fla. 1st DCA 1989). Otherwise, as to the order of civil contempt, the court is limited to such non-incarceration options as payroll deductions and similar alternatives as outlined in Bowen, 471 So. 2d at 1279. See Russell, 559 So. 2d at 677, citing…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- Scapin v. Scapin, 547 So. 2d 1012 (Fla. 1st DCA 1989)