JOHN NAPOLI, APPELLANT,
v.
MARIE C. NAPOLI, APPELLEE
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John Napoli appeals a contempt finding for alleged non-payment of marital dissolution arrearages. The Fourth District Court of Appeal reverses, holding that the trial court lacked competent evidence of Napoli's ability to pay and improperly presumed both his ability and willfulness in non-payment, and also committed procedural errors in referring the case to a master and adopting the master's report.
The contempt finding is reversed because: (1) there was no competent evidence of appellant's ability to pay the arrearages or the purge amount; (2) the court erroneously presumed appellant's ability to pay and the willfulness of his non-payment; (3) the trial court erred in adopting the master's report without a written record; (4) the court erred in referring the case to a general master without consent of the parties; and (5) the court erred in approving the master's report prior to considering appellant's timely exceptions.
[1] A trial court errs in approving a general master's report when no adequate record of the evidence presented before the master is available for review, and the unavailabil…
[2] When a court reporter was present at a hearing before a general master but the reporter's identity cannot be determined and no other record of the evidence is filed, the…
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Join FLexlaw to unlock all legal intelligence“there was no competent evidence of appellant's ability to pay the alleged arrearages or the purge amount and because the general master, and consequently the court, erroneously presumed appellant's ability to pay the accumulated arrearages. In addition, the court erroneously presumed the willfulness of his non-payment.”
Establishes that contempt for non-payment requires competent evidence of ability to pay and willfulness, not presumption
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Join FLexlaw to unlock all legal intelligenceAppellant John Napoli was found in contempt by a general master for failing to pay accumulated arrearages under a final judgment of dissolution of mar…
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PER CURIAM.
This is an appeal from a final order denying appellant’s exceptions to the report of a general master finding appellant in contempt of a final judgment of dissolution of marriage. We reverse because there was no competent evidence of appellant’s ability to pay the alleged arrearages or the purge amount and because the general master, and consequently the court, erroneously presumed appellant’s ability to pay the accumulated arrearages. In addition, the court erroneously presumed the willfulness of his non-payment. See Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997); see also Hewitt, Coleman & Assocs. v. Lymas, 460 So. 2d 467 (Fla. 4th DCA 1984)(argument of counsel is not evidence), rev. denied, 471 So. 2d 43 (Fla.1985); Gatlin v. Jacobs Constr. Co., 218 So. 2d 188 (Fla. 4th DCA), cert. denied, 225 So. 2d 529 (Fla.1969). We further find that the trial court erred in adopting the master’s report without a written record, erred in referring the case to a general master without the consent of the parties, and erred in approving the master’s report prior to consideration of appellant’s timely exceptions thereto.1 See Zebracki v. Zebracki, 648 So. 2d 850 (Fla. 4th DCA 1995); Rapaport v. Jewish Fed’n of Palm Beach County, Inc., 627 So. 2d 617 (Fla. 4th DCA 1993); Hanor v. Hinckley, 584 So. 2d 1129 (Fla. 4th DCA 1991).
Accordingly, the final order finding appellant in contempt is REVERSED.
DELL, STEVENSON and SHAHOOD, JJ., concur. . Rule 12.490 of the Family Law Rules of Procedure, effective January 1, 1996, modifying rule 1.490, Florida Rules of Civil Procedure for family law cases, does not apply because the master's proceedings took place before its effective date.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)
- Edmor Props., Inc. v. Metro. Dade Cnty., 225 So. 2d 529 (Fla. 1969)
- Vanzant v. Davies, 225 So. 2d 529 (Fla. 1969)
- Eli Gatlin v. Jacobs Constr. Co., 218 So. 2d 188 (Fla. 4th DCA 1969)
- Hanor v. The Honorable Harry G. Hinckley, Jr., 584 So. 2d 1129 (Fla. 4th DCA 1991)
- Hewitt v. Lymas, 460 So. 2d 467 (Fla. 4th DCA 1984)
- Zebracki v. Zebracki, 648 So. 2d 850 (Fla. 4th DCA 1995)
- Taylor v. Richards, 627 So. 2d 617 (Fla. 4th DCA 1993)
- Rapaport v. The Jewish Fed'n OF Palm Beach Cnty., Inc., 627 So. 2d 617 (Fla. 4th DCA 1993)