GIUSEPPE APA, APPELLANT,
v.
LIZZIE LOVE APA, APPELLEE
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A finding that a contemnor willfully divested himself of the ability to pay support is insufficient for incarceration without a present ability to pay.
[1] A finding that a contemnor willfully divested himself of the ability to pay support is insufficient to establish a present ability to pay, which is a prerequisite for inc…
[2] A trial court may find a party in civil contempt for willfully divesting themselves of the ability to pay alimony.
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Join FLexlaw to unlock all legal intelligenceFormer husband was found in civil contempt for transferring business interest for insufficient consideration to avoid alimony. The trial court ordered…
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PER CURIAM.
Former husband appeals a contempt order. The trial court found that the former husband willfully divested himself of his ability to pay alimony by transferring his interest in a business for insufficient consideration in order to avoid paying his obligations for his former wife. The trial court held Appellant in civil contempt and directed that he be incarcerated until he satisfies a purge amount of $2,500.
We affirm the portion of the order finding the former husband in contempt. However, we reverse the portion directing Appellant’s immediate incarceration. A finding that a contemnor had willfully divested himself of the ability to pay support is not a sufficient substitute for finding a present ability to pay, a prerequisite to incarceration for civil contempt. Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997); Zdravkovic v. Zdravkovic, 684 So. 2d 822 (Fla. 4th DCA 1996); Galligher v. Galligher, 643 So. 2d 706 (Fla. 4th DCA 1994); Campbell v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990).1
We note that based on the trial court’s prior experience with this ease either from the divorce trial or other unspecified hearings, the trial court was apparently convinced that Appellant had the ability to control business funds despite his “sale” of the business. Hoivever there is no such evidence in the record before this court. That is, there is nothing in the transcript and record of the April 24, 1997, hearing that resulted in Appellant’s present incarceration that allows this court to ascertain the source of the trial court’s knowledge.
Accordingly, this case is remanded for further proceedings. On remand the trial court may reexamine Appellant’s present ability to pay.
STONE, STEVENSON and SHAHOOD, JJ., concur. . We have considered application of the presumption articulated in section 61.14(5)(a), Fla. Stat. (1995). However our review of the record convinces us that the trial court's findings were not based on a presumption. Moreover, the trial court's express findings that appellant willfully divested himself of the business negate the presumption.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Elliott v. Palm Beach Cnty. Sheriff Ric Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA 2011)…nd should be punished for willfully violating court orders and whether he has divested himself of the present ability to pay. A finding that a party divested himself of assets, does not substitute for a finding of present ability to pay. Apa v. Apa, 693 So. 2d 702 (Fla. 4th DCA 1997). “Criminal contempt proceedings are appropriate where the party in default has continually and willfully neglected court-ordered support obligations, or has affirmatively divested him or herself of assets and property.” Brown v.…
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Rocco Mallardi v. Jenne, 721 So. 2d 380 (Fla. 4th DCA 1998)…ration of the business, were all part of the same scheme to make it appear that he now lacks the ability to pay the agreed alimony and to get the brother-in-law residency in this country. We contrast the record in this case with that in Apa v. Apa, 693 So. 2d 702 (Fla. 4th DCA 1997), where we reversed only because there was no record evidence to show that the former husband there continued to control business funds despite his purported sale of the business. In this case there is substantial evidence to supp…
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Wiesenthal v. Wiesenthal, 154 So. 3d 484 (Fla. 4th DCA 2015)…ad diverted income to his new wife so as to avoid his support obligations. We note that “[a] finding that a party divested himself of assets does not substitute for a finding of present ability to pay,” Elliott, 59 So. 3d at 1186 (citing Apa v. Apa, 693 So. 2d 702 (Fla. 4th DCA 1997)). “[Ejven a person who has willfully or negligently divested himself of the ability to pay money as ordered cannot be incarcerated for civil contempt when he does not then have the ability to purge himself.” Galligher v. Gallighe…
Authorities Cited
- Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)
- Campbell v. Lizabeth Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990)
- Galligher v. Galligher, 643 So. 2d 706 (Fla. 4th DCA 1994)
- Zdravkovic v. Zdravkovic, 684 So. 2d 822 (Fla. 4th DCA 1996)