FRANK J. BENNARDO, APPELLANT,
v.
RAE ELLA BENNARDO, APPELLEE

Fla. 4th DCA | 1992-03-25
No. 91-3243
DOWNEY, J., concurs., GUNTHER, J., dissents without opinion.
595 So. 2d 308 Florida District Court of Appeal, Fourth District (1992) Positive Treatment
Cited by 5 cases

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Holding

The court held that the order holding appellant in civil contempt must be reversed because the evidence did not establish that his failure to pay alimony was willful.

Facts & Procedural History

Appellant was found in civil contempt for failing to pay alimony. The trial court limited the time for evidence presentation, leading to a proffer fro…

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Topics
Ability To Purge Contempt Alimony Enforcement Willfulness Civil Contempt

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Opinion of the Court
STONE, Judge.

STONE, Judge.

We reverse the order holding appellant in civil contempt of court. The record evidence, including appellant’s proffer, establishes only that his failure to presently pay the full amount of alimony due was not willful. We accept appellant’s unrebutted proffer as true, noting that the trial court severely limited the time available for the presentation of evidence resulting in the proffer. There is no evidence in the record refuting appellant’s proof that his income was drastically reduced by economic conditions beyond his control. His present income is less than a third of what it was at the time of the final judgment. Likewise, there is no indication that the equity, if any, in the appellant’s professional practice or his automobile could reasonably be converted into cash. Rather, all of the evidence is to the contrary.

A present ability to purge is a prerequisite to incarceration for civil contempt. E.g., Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985). We note that the record does not reveal that the appellant is hiding either income or assets, or that any of his expenses, business or personal, were unreasonable or unnecessary.

Therefore, the contempt order is reversed. There is no need to address the other issues raised.

DOWNEY, J., concurs.

GUNTHER, J., dissents without opinion.

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  • Bryant v. State, 901 So. 2d 810 (Fla. 2005)
    …ate a cause of action”); Imperatore v. NationsBank of Florida, 677 So. 2d 933, 935 (Fla. 4th DCA 1996) (finding abuse of discretion where the trial court dismissed a complaint with prejudice without allowing the plaintiff to amend); Balcar v. Ramos, 595 So. 2d 308, 308 (Fla. 4th DCA 1992) (stating same as Nev. Interstate Props. Corp.). Had the circuit court stricken the motion with leave to amend, the amended motion Bryant filed in March 2003 would have been timely because it would have related back to the or…
  • Green Acres, Inc. v. First Union Nat'l Bank OF Fla., 637 So. 2d 363 (Fla. 4th DCA 1994)
    …es” may not be the law [*365] regarding opportunities to amend before dismissing a complaint -with prejudice, purchasers should be afforded a second chance here. See Gamma Dev. Corp. v. Steinberg, 621 So. 2d 718 (Fla. 4th DCA 1993); Balcar v. Ramos, 595 So. 2d 308 (Fla. 4th DCA 1992); Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621 (Fla. 4th DCA 1984). In addressing the caveat emptor barrier, purchasers assert that when the Florida Supreme Court abolished caveat emptor in residential real estate transactions,…
  • RHS Corp. v. City OF Boynton Beach & Clear Copy, Inc., 736 So. 2d 1211 (Fla. 4th DCA 1999)
    …t "[a] dismissal with prejudice should not be ordered without giving the party offering the defective pleading an opportunity to amend unless it is clear that the pleading cannot be amended so as to state a [*1214] cause of action.” Balcar v. Ramos, 595 So. 2d 308, 308 (Fla. 4th DCA 1992) (quoting Delia & Wilson, Inc. v. Wilson, 448 So. 2d 621, 622 (Fla. 4th DCA 1984)). That issue was not raised on appeal, and had it been, "we note that we would not have been able to address the claim because the record does…

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