RICK ALLAN PETERSON, APPELLANT,
v.
DAWN MARIE PETERSON, APPELLEE
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The court held that a trial court must make a separate finding that a party has the present ability to pay a purge amount before imposing incarceration for civil contempt related to child support arrears.
The appellant was found to be in arrears in child support and held in contempt. The trial court sentenced him to jail for failure to pay the purge amo…
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HALL, Judge.
Rick Allen Peterson appeals from the second amended order which finds him to be $17,213 in arrears in child support payments and adjudicates him to be in contempt of court. We agree with the appellant’s argument that the trial court erred in sentencing him to ninety days in the county jail for failure to pay the purge amount.
An order or judgment directing a party to pay child support creates a presumption that the party has the ability to make the support payments. In a civil contempt proceeding for failure to pay child support, a trial court must evaluate the evidence to determine whether the defaulting party has the ability to pay support and has willfully refused to comply with the court order. If the court finds the party to be in contempt, it must then make a separate finding that the party has the present ability to pay the purge amount before incarceration can be imposed. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985).
In the present case, the only evidence presented at the hearing concerning the appellant’s financial status was the appellee’s affidavit which stated that “the Ex-Husband is believed to continue to have the ability to contribute child support....” This was insufficient evidence on which to base a determination that the appellant had sufficient assets or income to enable him to pay the purge amount. We therefore find that the trial court erred in sentencing the appellant to incarceration.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
DANAHY, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA 1991)…parate, affirmative finding by the trial court that appellant has the present ability to comply with the purge conditions of the contempt order. In a civil contempt proceeding, a finding of actual ability to purge is essential. Peterson v. Peterson, 553 So. 2d 733 (Fla. 2d DCA 1989). Also, the civil contempt order improperly provides for automatic incarceration in the event of future noncompliance with the court’s order without requiring an additional hearing to determine appellant’s ability to pay. See Thomp…
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Dragland v. Dragland, 613 So. 2d 561 (Fla. 2d DCA 1993)…or failure to pay. To do so would nullif our previous opinion. However, we do agree with Husband that the court erred when it ordered him incarcerated without finding that he had the present ability to pay the purge amount. In Peterson v. Peterson, 553 So. 2d 733 (Fla. 2d DCA1989), this court stated: “If the court finds the party to be in contempt, it must then make a separate finding that the party has the present ability to pay the purge amount before incarceration can be imposed. Bowen v. Bowen, 471 So. 2…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)