CARL PICURRO, III, APPELLANT,
v.
SUSAN R. PICURRO, APPELLEE
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This case addresses the proper procedure for civil contempt proceedings in family support cases. The court reversed an order of commitment for failure to conduct a hearing and make findings regarding the appellant's present ability to pay child support.
The court held that the trial court erred by entering an order of commitment without conducting a hearing and making a separate, affirmative finding of the appellant's present ability to pay. The presumption of ability to pay that exists in the initial contempt determination does not substitute for the separate finding required before imposing incarceration.
[1] Incarceration for civil contempt cannot be imposed unless the trial court finds a present ability to purge oneself of contempt.
[2] In civil contempt proceedings for family support, a presumption of present ability to pay arises once the movant shows a court-ordered payment and a default.
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Join FLexlaw to unlock all legal intelligence“[I]ncarceration for civil contempt cannot be imposed unless the trial court finds a present ability to purge himself of contempt.”
Establishes the fundamental requirement that incarceration in civil contempt requires a finding of present ability to comply with purge conditions
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Join FLexlaw to unlock all legal intelligenceThe trial court entered an order of commitment against Carl Picurro for civil contempt related to failure to pay court-ordered support. The order foun…
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PER CURIAM.
Appellant appeals the trial court’s order denying his motion for rehearing of order of commitment. Appellant asserts that the trial court erred by entering an order of commitment without conducting a hearing to determine his present ability to pay. Moreover, the' trial court’s order did not contain any findings of appellant’s present ability to pay. Appellant filed a motion for rehearing, which was denied. We reverse.
“[I]nearceration for civil contempt cannot be imposed unless the trial court finds a present ability to purge himself of contempt.” Pompey v. Cochran, 685 So. 2d 1007, 1014 (Fla. 4th DCA 1997). Civil contempt proceedings in family support cases involve a two part process. See id. In the first step, once a movant comes forward with evidence showing that a party was court ordered to pay and has defaulted, a presumption exists that the defaulting party has the present ability to pay. See Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla.1985); Pompey, 685 So. 2d at 1014. The burden then shifts to the defaulting party to show lack of present ability to pay. See Bowen, 471 So. 2d at 1278-79. The court must then weigh the evidence to determine whether contempt has occurred. See id. at 1279.
In the second step, if the court has determined that contempt has occurred, the court must evaluate the alternatives to determine whether incarceration is appropriate. See id.; Pompey, 685 So. 2d at 1014. “If incarceration is deemed appro priate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Bowen, 471 So. 2d at 1279. In addition, “the presumption of ability to pay which exists in the first step is not a substitute for the ‘separate, affirmative finding’ of ability to pay required for incarceration.” Pompey, 685 So. 2d at 1014.
In the present case, while the trial court’s order stated that appellant was in willful contempt, it did not address appellant’s present ability to pay. Because the trial court was required to make a “separate, affirmative finding” of appellant’s present ability to pay before imposing incarceration, we reverse and remand for a hearing on the appellant’s present ability to pay.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.
GUNTHER, FARMER and GROSS, JJ., concur.
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Dep't OF Revenue v. Meade, 827 So. 2d 1093 (Fla. 2d DCA 2002)…r before the court so that the ability to pay a purge amount may be ascertained. This is so because incarceration “for civil contempt cannot be imposed unless the trial court finds a present ability to purge himself of contempt.” Picurro v. Picurro, 734 So. 2d 527, 528 (Fla. 4th DCA 1999). In a letter to an attorney who had been handling the Department of Revenue’s child support eases in his division, the circuit judge expressed appropriate concern over whether the court had, in fact, obtained jurisdiction o…
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Torrey v. Torrey, 815 So. 2d 773 (Fla. 4th DCA 2002)…stablish appellant’s present ability to pay the purge amount or to comply with the purge conditions. Therefore, we hold that the trial court erred when it summarily denied appellant’s motion to vacate the order of commitment. See Picurro v. Picurro, 734 So. 2d 527 (Fla. 4th DCA 1999). Accordingly, we reverse and remand this cause for an evidentiary hearing on appellant’s motion to vacate the order finding him in contempt and the order of commitment. On remand, the trial court shall first determine whether th…
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Bellville v. Bellville, 758 So. 2d 1255 (Fla. 4th DCA 2000)…period. Our review of the record shows no support for a finding that the husband had the present ability to pay the purge amount. The order of contempt on appeal must be reversed. See Gregory v. Rice, 727 So. 2d 251 (Fla.1999); Picurro v. Picurro, 734 So. 2d 527 (Fla. 4th DCA 1999); Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997); Fla. Fam. L.R.P. 12.615(d). Furthermore, during the pen-dency of this appeal, the underlying order setting the former husband’s support obligation has been reversed on appe…
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)
- Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)