THOMAS CAMPBELL, APPELLANT,
v.
LIZABETH CAMPBELL, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A finding that a contemnor willfully divested himself of the ability to pay is not a substitute for a finding of present ability to pay as a predicate for incarceration.
Thomas Campbell was found in civil contempt for failing to make a purge payment towards support arrearages. The trial court found he willfully reduced…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
HERSEY, Chief Judge.
Thomas Campbell appeals an order finding him in civil contempt. He was required to make a $2500 purge payment towards the support arrearages within a time certain or face incarceration. The trial court found that appellant had willfully "reduced his ability to pay court-ordered child support and alimony. This is not a legal excuse for nonpayment.”
While this is a correct statement of the law, it does not establish the necessary predicate for incarceration. As explained in Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985): “If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.”
Appellant’s evidence comes woefully short of meeting the burden imposed upon him to rebut the presumption that he has the ability to comply with the court’s order. Thus we affirm the first point on appeal. However, a finding that appellant has willfully divested himself of the ability to pay is not a sufficient substitute for a finding of present ability to pay as a predicate for the imposition of incarceration as a sanction. The rationale for this rule is explained by the Bowen court: “Because incarceration [for civil contempt] 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. at 1277. This does not rule out the imposition of other sanctions (including criminal contempt under appropriate circumstances) or utilization of collection procedures against appellant’s assets.
For the reasons stated, we reverse that portion of the order dealing with incarceration. Otherwise, we affirm and remand for further appropriate proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
LETTS and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Elliott v. Palm Beach Cnty. Sheriff Ric Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA 2011)…arcerated indefinitely for civil contempt where husband lacks the present ability to pay even if husband has willfully caused his current inability to pay. See Galligher v. Galligher, 643 So. 2d 706 (Fla. [*1187] 4th DCA 1994); Campbell v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990). To reiterate, we hold only that the trial court’s order finding that husband’s equity in his home gives him the present (i.e., “now”) ability to pay the purge amount is speculative and not supported by competent substantial evi…
-
Fredericks v. Sturgis, 598 So. 2d 94 (Fla. 5th DCA 1992)…n, supra; Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976); Maudlin v. Roman, 588 So. 2d 667 (Fla. 5th DCA 1991); Dowis, supra; Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990), rev. dismissed, 584 So. 2d 997 (Fla.1991); Campbell v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990), cause dismissed, 581 So. 2d 163 (Fla.1991). No such finding was made in the contempt order entered in this case and the argument that petitioner’s status as a lawyer obviates such a finding is specious. In a civil contempt proce…
-
Laing v. Laing, 574 So. 2d 279 (Fla. 3d DCA 1991)…ivil contempt “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 con-temnor’s ‘key to his cell.’ ” Id. at 1277 (citation omitted); see also Campbell v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990). At the time the former husband was arrested in 1990, the 1987 contempt order was outstanding and the purge provision had not been complied with. That being so, the incarceration provision of the 1987 order provided the basis fo…
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)