RICHARD E. BROWN, APPELLANT,
v.
NORA BROWN, APPELLEE
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Richard Brown appealed a civil contempt order for failure to pay child support, sentenced to 30 days jail unless he paid $1,254.78 within 14 days. The court reversed because the order lacked adequate findings that Brown's failure was willful, that he had present ability to pay the purge amount, and lacked a provision allowing purge after incarceration.
The court reversed the contempt order because it failed to meet three minimum requirements: it lacked findings that Brown's failure was willful, it contained contradictory findings regarding Brown's ability to pay (finding he had ability but also finding him indigent), and it did not contain a provision allowing Brown to purge himself of contempt after incarceration.
[1] An order of civil contempt for failure to pay child support must contain findings that the failure to pay was willful.
[2] An order of civil contempt requiring incarceration must contain an affirmative finding that the contemnor possesses the present ability to comply with the purge order.
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Join FLexlaw to unlock all legal intelligence“Civil contempt requires the finding of willful failure to pay ordered support payments, and if incarceration is deemed appropriate, an affirmative finding that the eontemnor possesses the present ability to comply with the purge order.”
Establishes the minimum procedural requirements for a valid civil contempt order in child support cases
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Join FLexlaw to unlock all legal intelligenceRichard Brown was ordered to pay child support to his former wife, Nora Brown. Brown failed to pay an arrearage of $1,254.78. The trial court found Br…
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THOMPSON, Judge.
The former husband, Richard E. Brown (“Brown”), appeals an order finding him in civil contempt of court for failing to pay court-ordered child support to the former wife, Nora Brown. The order sentenced Brown to 30 days in jail unless he purged himself by paying an arrearage of $1,254.78 within 14 days of the entry of the order. We reverse because the trial court’s order did not contain adequate findings that Brown’s failure to pay was willful or that Brown had the present ability to pay the purge amount, and because the order did not contain a provision for Brown to purge himself after his incarceration.
This court has held that an order of civil contempt must contain certain minimum requirements. In Cummins v. Cummins, 615 So. 2d 173 (Fla. 5th DCA 1993), this court stated that:
Civil contempt requires the finding of willful failure to pay ordered support payments, and if incarceration is deemed appropriate, an affirmative finding that the eontemnor possesses the present ability to comply with the purge order. Cummins, 615 So. 2d at 175 (citing Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985)).
The trial court’s finding that Brown “has the ability to meet his child support obligations as previously ordered by this Court” would appear to be sufficient. Pope v. McKee, 565 So. 2d 785, 786 (Fla. 5th DCA 1990). This finding was contradicted, however, by the trial court’s later finding that Brown was indigent for appeal purposes. The supreme court has held that a finding that a contemnor is indigent affirmatively establishes that the eontemnor does not have the present ability to pay a purge amount. Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985).
Accordingly, this ease must be remanded for the trial court to conduct a hearing in order to make a specific finding regarding Brown’s present ability to pay the purge amount. Marcellus v. Voltaire, 649 So. 2d 944, 944 (Fla. 4th DCA 1995).
Another ground for reversal of the contempt order is that the trial court did not make any finding that Brown’s failure to pay court-ordered child support was willful. Zebracki v. Zebracki, 648 So. 2d 850, 850-51 (Fla. 4th DCA 1995); Washburn v. Washburn, 647 So. 2d 1044, 1045 n. 1 (Fla. 4th DCA 1994); Cummins, 615 So. 2d at 175. Further, the purge provision of the order was improper because it did not allow Brown to purge himself of the civil contempt after incarceration. We have held similar provisions invalid. See Broyles v. Broyles, 573 So .2d 357, 360 (Fla. 5th DCA 1990), (holding that contempt order was “defective because it [did] not contain an express provision for purging any contempt after incarceration through payment of the ordered amounts”), review dismissed, 584 So. 2d 997 (Fla.1991).
Finally, 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. REVERSED and REMANDED for further proceedings.
PETERSON, C.J., and GOSHORN, J., concur.
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Dep't OF Child. & Families v. R.H., 819 So. 2d 858 (Fla. 5th DCA 2002)…rvs. v. Bills, 661 So. 2d 69, 70 (Fla. 2d DCA 1995) (stating, "Before a trial court can hold a party in civil contempt, it must make a finding that the party has the present ability to comply with the order ....”) (citation omitted); Brown v. Brown, 658 So. 2d 627 (Fla. 5th DCA 1995); Bauer v. Hardy, 651 So. 2d 748 (Fla. 1st DCA 1995); Florida Dep’t of Health & Rehabilitative Servs. v. State, 616 So. 2d 66 (Fla. 1st DCA 1993); Florida Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033, 1036 (Fla. 4th DCA 1…
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Jones v. Jones, 671 So. 2d 852 (Fla. 5th DCA 1996)…e considered as assets. See Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990). He argues that, without a finding of a present ability to pay the purge, incarceration was an inappropriate alternative to collect the arrearages. See Brown v. Brown, 658 So. 2d 627 (Fla. 5th DCA 1995). We disagree. In Pope v. McKee, 565 So. 2d 785 (Fla. 5th DCA 1990), this court was faced with a similar problem of whether the trial court’s order finding that the former husband had the ability to comply with the purge conditio…
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Margherita Downey v. Downey, 874 So. 2d 734 (Fla. 4th DCA 2004)…bility to pay the purge amount.” Id. Accordingly, the matter was remanded for the trial court to “conduct a hearing in order to make specific findings on the appellant’s present ability to pay the purge amount....” Id. Similarly, in Brown v. Brown, 658 So. 2d 627, 628 (Fla. 5th DCA 1995), relying on Bowen and Marcellus, the court concluded that, because Brown’s ability to pay was contradicted by the trial court’s finding of indigence for appeal purposes, the order of contempt should be reversed and remanded…
Previewing 3 of 4 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)
- Broyles v. Broyles, 573 So. 2d 357 (Fla. 5th DCA 1990)
- Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA 1991)
- Pope v. Nan B. McKEE, 565 So. 2d 785 (Fla. 5th DCA 1990)
- Washburn v. Washburn, 647 So. 2d 1044 (Fla. 4th DCA 1994)
- Zebracki v. Zebracki, 648 So. 2d 850 (Fla. 4th DCA 1995)
- Henri C. Marcellus v. Ingrid Paule Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995)
- Cohn v. Bennett A. Reiss and Stewart J. Leonard, 615 So. 2d 173 (Fla. 4th DCA 1993)
- Cummins v. Cummins, 615 So. 2d 173 (Fla. 5th DCA 1993)