PATRICIA POLLI, F/K/A PATRICIA VINA, APPELLANT,
v.
GEORGE P. VINA, APPELLEE
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Patricia Polli sought to hold her ex-husband George Vina in contempt for failing to pay $14,800 in court-ordered child support. The trial court denied her motion, but the appellate court reversed, holding that Vina failed to rebut the presumption of ability to pay by presenting only evidence of voluntarily reduced work hours.
Vina's evidence of voluntarily reduced working hours without cause or necessity does not rebut the presumption of ability to pay. Because he failed to present competent evidence of circumstances beyond his control that intervened after the original support order, he should have been found in contempt.
[1] A party seeking to hold another in civil contempt for failure to pay child support must first establish the payor's default.
[2] Upon a showing of default in child support payments, a presumption arises that the payor has the ability to pay.
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Join FLexlaw to unlock all legal intelligence“An order directing a party to pay child support creates, for the purpose of a subsequent proceeding, a presumption of an ability to pay.”
Establishes the foundational legal principle that child support orders create a presumption of ability to pay in contempt proceedings.
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Join FLexlaw to unlock all legal intelligencePatricia Polli, the custodial parent of two minor children, sought contempt sanctions against George Vina for nonpayment of $14,800 in child support. …
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PER CURIAM.
Patricia Polli appeals an order denying her motion to hold her former husband in contempt for failure to pay court-ordered child support. We reverse.
Polli, the parent with primary physical custody of the parties’ two minor children, petitioned the court to hold the children’s father, George Vina, in contempt for failing to pay $14,800 in past-due child support. She alleged that the nonpayment was willful in that Vina is a C.P.A. who earns $70,000 a year, spends freely, and takes expensive European vacations. At the hearing on the contempt motion, Vina failed to present any evidence of circumstances beyond his control, which occurred after the entry of the payment order, to explain his failure to make the court-ordered support payments.
An order directing a party to pay child support creates, for the purpose of a subsequent proceeding, a presumption of an ability to pay. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985); Register v. Pita, 546 So. 2d 1162 (Fla. 1st DCA 1989); Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986). In a civil contempt proceeding brought to enforce a child-support order, the movant must first show that the payor has defaulted. The burden then shifts to the payor to rebut the presumption by demonstrating that, due to circumstances beyond the payor’s control which intervened since the time the original order was entered, he or she no longer has the ability to meet the support obligation. Bowen, 471 So. 2d at 1279; Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989); Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988).
All that was shown by Mr. Vina is that he had reduced his working hours. Voluntary unemployment or voluntarily reduced employment, without cause or necessity, which reduces the ability to pay court-ordered child support, is not a legal excuse for nonpayment. Because the father in this case failed to present any competent evidence to dispel the presumption of an ability to pay, he should have been found in contempt. See Register, 546 So. 2d at 1162; Wright v. Wright, 507 So. 2d 655 (Fla. 3d DCA 1987).
Reversed and remanded for further consistent proceedings.
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)…Id. at 1279. An intentional divestiture of assets with intent to avoid the payment obligation can be a ground for civil contempt. Knowles v. Knowles, 522 So. 2d 477, 479 (Fla. 5th DCA), review denied, 531 So. 2d 1354 (Fla.1988); cf. Polli v. Vina, 557 So. 2d 55 (Fla. 3d DCA 1989) (voluntary reduction in earnings). Where the contemnor is without assets the remedy for civil contempt is limited to non-incarceration options, such as those mentioned in Bowen, 471 So. 2d at 1279. Where there has been a divestitu…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Margulies v. Margulies, 528 So. 2d 957 (Fla. 3d DCA 1988)
- Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989)
- Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986)
- Wright v. Wright, 507 So. 2d 655 (Fla. 3d DCA 1987)
- Register v. Pita, 546 So. 2d 1162 (Fla. 1st DCA 1989)