JOSEPH A. GIALLANZA, APPELLANT,
v.
DEPARTMENT OF REVENUE ON BEHALF OF VIVIAN E. GIALLANZA, APPELLEE
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Joseph Giallanza appeals a civil contempt order for failure to pay child support and an order requiring transfer of jointly held property. The appellate court affirms the contempt finding but reverses the incarceration and property transfer portions, holding that the trial court failed to make a specific finding of present ability to pay and lacked authority to compel property conveyance as a purge condition.
The contempt finding is affirmed because the presumption that Giallanza had ability to pay child support was not dispelled by the record. However, the incarceration and property transfer portions are reversed because: (1) the court failed to make an express written finding of present ability to pay the purge amount, and (2) the court lacked authority to compel execution of a quitclaim deed as a condition of purging the contempt.
[1] A finding of willful contempt for failure to pay child support requires an express written finding that the contemnor had the present ability to pay the purge amount.
[2] Incarceration for civil contempt is improper absent a specific finding of a present ability to pay the amount ordered to purge the contempt.
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Join FLexlaw to unlock all legal intelligence“Incarceration is improper absent a specific finding of a present ability to pay the amount ordered to purge the contempt.”
Establishes the controlling legal standard requiring express findings of present ability to pay for civil contempt incarceration to be valid.
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Join FLexlaw to unlock all legal intelligenceJoseph Giallanza was ordered to pay child support following a dissolution of marriage. He fell into arrears on these payments. A support enforcement h…
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CAMPBELL, MONTEREY, (Senior) Judge.
Joseph A. Giallanza (the former husband) challenges the trial court’s order of March 11, 1999, finding him in civil contempt and ordering his incarceration for failure to pay child support. Because we find errors that are apparent from the face of the contempt order, we reverse those portions of the disputed order which require the former husband’s incarceration for civil contempt and the transfer of property.
The support enforcement hearing officer’s recommended order not only ordered the husband to be incarcerated for failure to pay previously ordered child support, but also required the former husband to relinquish his ownership in property he jointly owned with the former wife. The recommended order stated as follows:
X. Respondent shall immediately sign a quitclaim deed to property jointly held with the petitioner with the approximate value of $40,000.00. Upon signing said quitclaim, petitioner shall credit respondent’s arrears for child support $20,000.00. Should respondent fail to voluntarily quitclaim said property, this order shall act as such and said property shall be deemed quitclaimed by operation of the law and all rights respondent may have in said property shall immediately be vested in the petitioner. In addition, should respondent fail to sign quitclaim within 10 days of this order, a writ of bodily attachment shall issue without further hearing.
The trial court ratified and approved the hearing officer’s order, which contained no findings of fact but merely stated that it was:
ORDERED AND ADJUDGED THAT:
1. THE RESPONDENT is in willful contempt of the Court for failure to pay support pursuant to previous order of this court. The Respondent has the ability †-> pay as previously ordered or had an ability at the time the payments accrued.
The final judgment of dissolution directing the former husband to pay child support created a presumption that the former husband had the ability to pay. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985). The former husband had the burden to come forward with evidence to dispel the presumption that he had the ability to pay. The record does not contain a transcript of the proceedings before the hearing officer. We do not know whether the lack of a transcript is a fault of the parties or the hearing officer’s failure to establish a record as required by Florida Family Law Rule 12.491(e)(2). Because the contempt hearing was not recorded, we must presume that the former husband failed to meet his burden to dispel the presumption that he had the ability to pay. Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986). Therefore, we affirm the trial court’s finding of contempt. However, the trial court’s order is deficient in that it fails to include an express written finding that the former husband had the present ability to pay the purge. Id. at 269-70.
The purpose of a civil contempt proceeding is to enforce compliance with a previous support order. Bowen at 1277. Thus, incarceration may only be imposed when the contemnor has the ability to comply. Incarceration is improper absent a specific finding of a present ability to pay the amount ordered to purge the contempt. Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA 1998). The portion of the order which the husband challenges here stated merely that the husband “has the ability to pay as previously ordered or had an ability to pay at the time the payments accrued.” (Emphasis supplied). Such an alternative to a specific finding of a present ability to pay is insufficient to support an order of incarceration for civil contempt. In addition, the trial court lacked the authority to compel, as a condition of a purge, the former husband to execute a quitclaim deed to unspecified property and to provide that, absent execution of such a, quitclaim deed, the trial court’s order would operate as a conveyance of the property.
Accordingly, we reverse the portions of the order imposing the sentence of incarceration and requiring the transfer of property and remand for further proceedings. On remand, the hearing officer must set forth findings of fact in the recommended order as required by Florida Family Law Rule 12.491(e)(4).
Reversed and remanded.
FULMER, A.C.J., and STRINGER, J., Concur.
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Sanders v. Gracie Murray Laird, 865 So. 2d 649 (Fla. 2d DCA 2004)…as indicating approval, we merely note that the order fails to comply with Florida Family Law Rule of Procedure 12.615 in several material respects. See generally Marconi v. Walther, 819 So. 2d 936 (Fla. 2d DCA 2002); Giallanza v. Dep’t of Revenue, 799 So. 2d 256 (Fla. 2d DCA 2001); Bresch v. Henderson, 761 So. 2d 449 (Fla. 2d DCA 2000). We also observe that the circuit court cannot impose a "sentence” as a sanction for a civil contempt. If the court orders incarceration or another coercive sanction as a mea…
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Granell v. Granell, 940 So. 2d 513 (Fla. 2d DCA 2006)…has the present ability to pay the expenses. See Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985); see also Fla. Fam. L.R.P. 12.615(c)(2)(A), (d)(1), (e); In re N.V. v. State, 890 So. 2d 1232, 1234 (Fla. 2d DCA 2005); Giallanza v. Dep’t of Revenue, 799 So. 2d 256, 258 (Fla. 2d DCA 2001). Accordingly, we reverse and remand, noting that it appears likely further evidentiary proceedings will be required in order to address the Former Husband’s ability to pay in light of the passage of time and possible changes…
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Patrick v. Patrick, 950 So. 2d 517 (Fla. 2d DCA 2007)…rs, the contempt order contains no written findings that Dr. Patrick, in fact, had the present ability to pay attorney’s fees or the amounts that may be due under the marital settlement agreement. See Giallanza v. Dep’t of Revenue ex rel. Giallanza, 799 So. 2d 256, 258 (Fla. 2d DCA 2001). These deficiencies require us to vacate the order of contempt. See Bresch, 761 So. 2d at 451. Vacated and remanded for further proceedings. CANADY and VILLANTI, JJ., Concur.…
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)
- Brown v. Ira Smith, 705 So. 2d 682 (Fla. 4th DCA 1998)
- Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986)