JOSE L. PEREZ, APPELLANT,
v.
CAROLYN A. PEREZ, 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.
Jose L. Perez appeals a civil contempt order for failure to pay $8,100 in attorney's fees, contending he lacks present ability to pay. The court reverses and remands, holding that civil contempt incarceration requires a finding of ability based on the contemnor's own assets, not those of relatives.
A court may not impose incarceration for civil contempt based on the contemnor's ability to borrow from relatives. Civil contempt incarceration requires a separate, affirmative finding that the contemnor possesses present ability to comply based on the contemnor's own assets. If the contemnor lacks present funds to meet the court's order, incarceration cannot be ordered in a civil contempt proceeding, though criminal contempt may be available for intentional asset divestiture.
[1] A civil contempt order that includes incarceration must contain an affirmative finding that the contemnor has the present ability to comply with the purge conditions.
[2] A court may consider all of the contemnor's assets when determining their present ability to pay a purge amount in a civil contempt proceeding.
Previewing 2 of 6 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“Where incarceration is under consideration as a possible remedy for a civil contempt, there must be 'a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.'”
Establishes the legal standard requiring proof of present ability to pay before civil contempt incarceration can be imposed.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJose L. Perez was ordered to pay $8,100 in attorney's fees and costs to his ex-spouse following dissolution of marriage. He did not dispute owing the …
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.
Explore caselaw by topic → Browse Due Process Safeguards cases and more on FLexlaw
PER CURIAM.
Jose L. Perez appeals a post-dissolution of marriage order adjudicating him in civil contempt for failure to pay $8,100 attorney’s fees and costs incurred by his ex-spouse and imposing 30 days incarceration with a provision allowing him to purge the contempt by paying the entire amount due by a date certain. Perez does not dispute that he owes that amount. However, he contends that, through no fault of his own, he does not have the present ability to pay the purge amount.
The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1985). Where incarceration is under consideration as a possible remedy for a civil contempt, there must be “a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Id. at 1279. While making that determination, the court may look to all of the contemnor’s assets from which the amount might be obtained. Id. See Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990).
In the present case, it appears the trial court based its finding of present ability to pay, and the finding of contempt, on the general master’s outrageous theory that Perez could obtain a loan from his relatives. The findings of the general master, upon whose report the trial court relied, stated in part:
6. The General Master finds that the Respondent/Husband has the superior ability to pay the Petitioner/Wife’s attorney’s fees and costs as the testimony showed that he can readily borrow the funds from relatives
It is clear that under Bowen, the instant inquiry must be directed to the contemnor’s own assets, not those of his relatives. Thus, there must be a new hearing. Russell, 559 So. 2d at 676. As noted in Russell, the Bowen case envisions a two-stage inquiry in civil contempt proceedings: first, a determination of whether the respondent has willfully violated the court order, id. at 1278-79; second, the decision as to what remedy is appropriate. Id. at 1279.
In the instant case, testimony was taken which may have supported the theory that Perez had purposefully transferred certain assets to his father, who was also his employer. If, in actuality, Perez is vested with the actual resources with which to purge the contempt order, the remedy of incarceration may be ordered. Scapin v. Scapin, 553 So. 2d 319 (Fla. 1st DCA 1989). Otherwise, as to the order of civil contempt, the court is limited to such non-incarceration options as payroll deductions and similar alternatives as outlined in Bowen, 471 So. 2d at 1279. See Russell, 559 So. 2d at 677, citing Knowles v. Knowles, 522 So. 2d 477, 479 (Fla. 5th DCA), review denied, 531 So. 2d 1354 (Fla.1988). Willful disobedience of an order of the court through the intentional divestiture of assets may be punished by incarceration in a criminal contempt proceeding with the attendant due process safeguards, Bowen, 471 So. 2d at 1279; Russell, 559 So. 2d at 677, and this option is still open to the trial court. However, in the instant civil proceeding, if, upon remand, the trial court determines that the contemnor does not, himself, presently have the funds to meet the court’s order, incarceration cannot be ordered.
Accordingly, we reverse the order under review and remand for further proceedings consistent with Bowen.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992)…); Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA1989). We do, however, conclude that the two orders finding the former husband in civil contempt for nonpayment of the support obligation and ordering incarceration must be reversed. In Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA1992), we observed that the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. See Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1985). Under Bowen, a civil contempt proc…
-
Montgomery Blair Sibley v. Sibley, 833 So. 2d 847 (Fla. 3d DCA 2002)…m Mr. Sibley. As a general proposition, however, this court has rejected the idea that the availability of loans or gifts from wealthy relatives translates into the present ability to pay a purge amount. The former husband relies on Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992), which said: The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1985). Where incarceration is under consideratio…
-
Breitenbach v. Breitenbach, 838 So. 2d 1266 (Fla. 2d DCA 2003)…ourt acknowledged the hardship that this obligation would create for the Husband, but in its order the court [*1268] suggested that he mortgage nonmarital property in order to pay the temporary alimony award. This was also error. See Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992) (finding general master’s finding of present ability to pay based on spouse’s ability to obtain a loan “outrageous”). Because there is no evidence in the record to support the circuit court’s temporary alimony award of $2000, we…
Previewing 3 of 12 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)
- Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990)
- Knowles v. Knowles, 522 So. 2d 477 (Fla. 5th DCA 1988)
- Scapin v. Scapin, 553 So. 2d 319 (Fla. 1st DCA 1989)