DAVID A. PERRETT, APPELLANT,
v.
DONNA B. PERRETT, APPELLEE
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A former husband appealed an order authorizing automatic incarceration for contempt upon receipt of a verified statement of nonpayment of child support and alimony. The appellate court reversed, holding that civil contempt incarceration requires a contemporaneous judicial finding that the contemnor has the present ability to purge the contempt, not merely a verified statement triggering automatic jail time.
The court held that the 'pick up' order violates the requirements established in Bowen v. Bowen because incarceration for civil contempt cannot be imposed absent a contemporaneous finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without such a finding, the contemnor does not hold the key to the jailhouse door.
[1] A court order for incarceration based on civil contempt for non-payment of support obligations requires a finding that the contemnor has the present ability to purge the…
[2] A "pick up" order for incarceration upon receipt of a verified statement of non-payment is improper if it does not include a contemporaneous finding of the contemnor's pr…
Previewing 2 of 3 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“civil contempt is a mechanism by which compliance with a court order is effected. Incarceration for civil contempt cannot be imposed "absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt.”
Establishes the foundational requirement that before imposing civil contempt incarceration, the court must find the contemnor has the present ability to comply
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced with a final judgment requiring appellant to pay $500 per month per child in child support and $1,800 per month in rehabilit…
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SMITH, Judge.
Appellant, the former husband, appeals an order rendered November 4, 1992 providing for his incarceration for contempt upon receipt by the lower court of a verified statement by appellee, the former wife, indicating appellant’s failure to pay child support and alimony. We reverse.
Two children were born to the marriage of the parties to this appeal. The marriage was dissolved by a final judgment which incorporated a stipulation between the parties providing, among other things, that appellant is to pay to the appellee $500 per month for each child and $1,800 per month in rehabilitative alimony.
The record reflects that appellant has been frequently negligent in timely and completely fulfilling his child support and alimony obligation. On several occasions, appellee has moved for an order finding appellant in contempt for his failure to pay support. Appellant was eventually found in con tempt on a third motion; however, in two prior orders, the lower court found that appellant did not have a present ability to pay the accumulated arrearage. On a fourth motion for contempt, the lower court found that appellant presently had, and had formerly possessed, the ability to pay the child support and alimony owing, but that appellant had chosen not to pay. Attempting to relieve appellee of the continual need to resort to contempt motions, the lower court ordered that in the future, on receipt of a “verified statement of nonpayment” by the appellee, the lower court would issue a “pick up” order for appellant. Upon issuance of such an order, appellant would serve a 30-day jail sentence unless and until he paid the arrearage. This “pick up” order was to remain in effect so long as rehabilitative alimony was owed.
On appeal, appellant argues that the “pick up” order fails to satisfy the dictates of Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985), and we agree. The supreme court reaffirmed in Bowen that civil contempt is a mechanism by which compliance with a court order is effected. Incarceration for civil contempt cannot be imposed “absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door.” 471 So. 2d at 1277. Because appellant may be incarcerated upon receipt of a verified statement of nonpayment, the Bowen requirement of a contemporaneous finding that the contemnor' has the present ability to purge himself of the contempt is not met.
Accordingly, the “pick up” order is REVERSED.
BARFIELD and MICKLE, JJ., concur.
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Citator
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)