JAMES L. OWENS, APPELLANT,
v.
GWENDOLYN J. OWENS, APPELLEE
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James Owens appeals a civil contempt order for failure to pay child support, permanent alimony, and lump sum alimony. The court affirmed the contempt finding and imprisonment sanction for child support and spousal support, but reversed the portion enforcing the lump sum alimony award through contempt proceedings, remanding for recalculation of the purge amount.
The court affirmed the contempt finding and imprisonment sanction for child support and permanent alimony obligations, as the evidence supported findings that Owens willfully failed to pay and had present ability to comply. However, the court reversed the portion requiring payment of lump sum alimony as a condition of purging contempt, holding that contempt cannot be used to enforce an alimony award that effects a property division.
[1] Civil contempt may be used to enforce child and spousal support obligations.
[2] Civil contempt is not an appropriate remedy to enforce a lump sum alimony award that effects a distribution of marital property.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“because the lump sum alimony award effected a distribution of marital property between the parties and the remedy of contempt may not be used to enforce an alimony award effecting a property division, that portion of the order requiring Mr. Owens to pay the lump sum alimony as a condition for purging himself of contempt must be struck”
Establishes the core holding that contempt cannot be used to enforce lump sum alimony constituting property division
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Join FLexlaw to unlock all legal intelligenceThe trial court found that James Owens willfully failed to pay child support, permanent alimony, and lump sum alimony ordered in a dissolution of marr…
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ZEHMER, Judge.
James L. Owens appeals an order of civil contempt entered upon the finding that he willfully failed to pay child support, permanent alimony, and lump sum alimony awarded Gwendolyn J. Owens in the final judgment of dissolution of marriage, and the further finding that Mr. Owens has the present ability to make the alimony and support payments ordered as a condition of purging himself of contempt.1 Mr. Owens does not contest the finding of contempt as to his support obligations, but argues that the evidence shows he does not have the present financial ability to comply with the ordered payments and that civil contempt is not an appropriate remedy to enforce the lump sum alimony award.
We conclude that the record contains legally sufficient evidence to support the trial court’s findings. We approve the order to the extent that it imposes the sanction of imprisonment for civil contempt to compel the payment of Owens’s child and spousal support obligations. However, because the lump sum alimony award effected a distribution of marital property between the parties and the remedy of contempt may not be used to enforce an alimony award effecting a property division, that portion of the order requiring Mr. Owens to pay the lump sum alimony as a condition for purging himself of contempt must be struck. Veiga v. State, 561 So. 2d 1335 (Fla. 5th DCA 1990). See also Gibson v. Bennett, 561 So. 2d 565 (Fla.1990). On remand the trial court must determine the amount of lump sum alimony involved and deduct that amount from the purge amount set forth in the orders of contempt and incarceration.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings in accordance with this opinion.
BARFIELD and WOLF, JJ., concur. . We treat this proceeding as one for civil contempt, even though it purports to "sentence" Mr. Owens to jail for 90 days for failing to make the payments ordered in the final judgment, because the "Order of Incarceration” provides that he "may purge himself from said sentence at any time prior to its expiration by paying to the Former Wife a total of $22,923.34 which is the arrearage set forth and established in this Court’s Order Upon Motion For Contempt of September 19, 1990.” Technically, the imposition of incarceration is not a "sentence” but only an open-ended penalty to coerce compliance, which may be avoided or terminated by compliance with the conditions of the court’s order.
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Borchard v. Borchard, 730 So. 2d 748 (Fla. 2d DCA 1999)…ers, 443 So. 2d 388 (Fla. 2d DCA 1983), Doerflein v. Doerflein, 724 So. 2d 153, 23 Fla. L. Weekly D2721 (Fla. 5th DCA 1998), Montgomery v. Montgomery, 169 B.R. 442 (M.D.Fla.1994); and (3) whether the award is enforceable by contempt, Owens v. Owens, 578 So. 2d 444 (Fla. 1st DCA 1991), Mattera v. Mattera, 629 So. 2d 1106 (Fla. 4th DCA 1994). If lump sum alimony were only used as a tool of support and not as a method to distribute assets, much of this confusion would disappear. . When equitable distribution wa…
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Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2d DCA 2009)…bankruptcy discharge, see Meeks v. Meeks, 964 So. 2d 185 (Fla. 2d DCA 2007); Masters v. Masters, 443 So. 2d 388, 389 (Fla. 2d DCA 1983), and enforcement by contempt, see Mattera v. Mattera, 629 So. 2d 1106, 1108 (Fla. 4th DCA 1994); Owens v. Owens, 578 So. 2d 444, 445 (Fla. 1st DCA 1991). See also Borchard v. Borchard, 730 So. 2d 748, 752 (Fla. 2d DCA 1999) (discussing history, use, and implications of lump sum alimony). . "Alimony'' can be deductible from the pay- or's income for federal income tax purpose…
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Hertrich v. Hertrich, 643 So. 2d 115 (Fla. 5th DCA 1994)…erty between the parties by requiring appellant John C. Hertrich to repay a sum of money to appellee Roberta L. Hertrich. Such an order is not enforceable by contempt. See Veiga v. State, 561 So. 2d 1335 (Fla. 5th DCA 1990). See also Owens v. Owens, 578 So. 2d 444 (Fla. 1st DCA 1991). Judgment AFFIRMED AS MODIFIED. DAUKSCH, GOSHORN and DIAMANTIS, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gibson v. Bennett, 561 So. 2d 565 (Fla. 1990)
- Veiga v. State, 561 So. 2d 1335 (Fla. 5th DCA 1990)