WILLIAM DEXTER MILLER, APPELLANT,
v.
KAREN ANN MILLER, APPELLEE
GRIFFIN, Judge.
This is the appeal of an order of civil contempt resulting from appellant’s continual failure to pay child support. We find no error in the lower court’s finding of contempt. However, there are two defects in the order that require reversal. First, neither the order nor the record contains any separate, 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 Thompson v. Thompson, 576 So. 2d 436 (Fla. 4th DCA 1991); Phillips v. Phillips, 502 So. 2d 2 (Fla. 4th DCA 1986); Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962).
Order QUASHED in part and REMANDED.
COWART and HARRIS, JJ„ concur.
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Hipschman v. Cochran, 683 So. 2d 209 (Fla. 4th DCA 1996)…ue after October 23. It is clear that civil contempt orders may not provide for incarceration based on future, anticipated noncompliance with a court’s periodic support order. Phillips v. Phillips, 502 So. 2d 2 (Fla. 4th DCA 1986); Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA 1991). There must be a hearing before incarceration, where a contemnor may challenge the allegation of noncompliance and defend on the ground that he does not have the present ability to pay under Bowen. A second constitutional defici…
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Dep't OF Health & Rehabilitative Servs. v. Beckwith, 624 So. 2d 395 (Fla. 5th DCA 1993)…y entertained appeals of orders finding the payor former spouse to be in civil contempt for failure to pay child support, but none of the opinions in those cases discuss the rule of appellate procedure authorizing the review, e.g., Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA1991); Pope v. McKee, 565 So. 2d 785 (Fla. 5th DCA1990); Upchurch v. Upchurch, 418 So. 2d 373 (Fla. 5th DCA1982). We hold that a civil contempt order imposing incarceration as an inducement to performance of the act required by the tri…
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Brown v. Brown, 658 So. 2d 627 (Fla. 5th DCA 1995)…, the order did not provide for another hearing at the time of incarceration to determine if Brown still had the present ability to pay. Because the incarceration provision was prospective, Brown was entitled to the second hearing. Miller v. Miller, 587 So. 2d 601, 601 (Fla. 5th DCA 1991). Accordingly, we reverse the contempt order and remand for the trial court to conduct a hearing and to enter an order containing specific findings consistent with this opinion. [*629] REVERSED and REMANDED for further proce…
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- Haldale Corp. v. Avante Garde Condo. Ass'n, Inc., 502 So. 2d 2 (Fla. 4th DCA 1986)
- Ottis Tal Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962)
- Holland v. State, 576 So. 2d 436 (Fla. 3d DCA 1991)
- Peterson v. Peterson, 553 So. 2d 733 (Fla. 2d DCA 1989)