JOHN RAYMOND EDWARD CLEVELAND, APPELLANT,
v.
SUSAN IRIS CLEVELAND, APPELLEE
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This appeal challenges a contempt order against the appellant for allegedly willfully failing to pay child support. The Fourth District Court of Appeal reversed the contempt finding, holding that the trial court lacked substantial, competent evidence of the appellant's present ability to pay the ordered support and purge amount.
The trial court's contempt order was reversed because there was no substantial, competent evidence supporting the finding that the appellant had the ability to pay the support or the purge amount. The trial court improperly rejected the appellant's financial affidavit without identifying specific sources from which he could have obtained funds, and made only conclusory findings without a factual basis.
[1] A presumption of ability to pay previously ordered support can be rebutted.
[2] A trial court must identify the specific sources from which a party could have obtained funds to comply with a prior support order when finding contempt.
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Join FLexlaw to unlock all legal intelligence“the presumption of ability to pay support previously ordered can be rebutted”
Establishes that the appellant can challenge the trial court's prior presumption of ability to pay by submitting new evidence
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Join FLexlaw to unlock all legal intelligenceThe appellant was found in contempt of court for failing to pay child support. The trial court ordered him to pay a purge amount of $3,300 by a certai…
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PER CURIAM.
This is an appeal from an order of the Broward Circuit Court adjudicating appellant in contempt, finding that appellant had the present ability to pay support and had willfully failed to pay it and ordering the payment of a purge amount of $3,300 by a certain date or else a writ of arrest would issue for ninety days. We reverse the order of contempt.
Based on our review of the record, we conclude that there was no substantial, competent evidence to support the trial court’s finding that appellant had the ability to pay the support or the purge amount.
First of all, the presumption of ability to pay support previously ordered can be rebutted. See Bowen v. Bowen, 471 So. 2d 1274, 1278-79 (Fla.1985).
Appellant filed a new financial affidavit indicating that he did not have the present ability to pay the support, but this affidavit was summarily rejected by the trial court apparently based only on recollection of its previous findings and rejection of previous evidence presented at other contempt hearings. In Vazquez v. Vazquez, 827 So. 2d 384 (Fla. 4th DCA 2002), this court construed rule 12.615(d)(1) of the Florida Family Law Rules of Procedure as requiring the trial court to actually identify the sources from which the appellant could have obtained the funds to comply with a prior support order.1 That was not done here. In addition, the trial court made a conclusory finding of ability to pay the purge amount, but offered no factual basis for that finding either.
The trial court did not inquire into appellant’s actual assets and holdings at the time of the hearing and, as previously mentioned, summarily rejected appellant’s financial affidavit. The court simply arrived at the purge amount by calculating the entire amount of support then due.
Accordingly, the order of contempt is reversed and this cause remanded for further proceedings.
REVERSED and REMANDED.
STEVENSON, SHAHOOD and HAZOURI, JJ., concur. . An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of contempt was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. See Fla. Fam. L.R.P. 12.615(d)(1).
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Schriber v. State, 959 So. 2d 1254 (Fla. 4th DCA 2007)…withdraw his plea. See Mosley v. State, 932 So. 2d 1239 (Fla. 1st DCA 2006); Banks v. State, 927 So. 2d 169 (Fla. 1st DCA 2006); Norman v. State, 897 So. 2d 553 (Fla. 1st DCA 2005); Smith v. State, 849 So. 2d 485 (Fla. 2d DCA 2003); Meeks v. State, 841 So. 2d 648 (Fla. 2d DCA 2003); Wofford v. State, 819 So. 2d 891 (Fla. 1st DCA 2002). The state argues that the trial court did not need to appoint conflict-free counsel [*1257] because the motion was insufficient or conclusively refuted by the record. For sup…
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Elliott v. Palm Beach Cnty. Sheriff Ric Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA 2011)…(recognizing that section 61.14(5)(a) controls the burden of proof in this type of case). A trial court’s factual finding regarding ability to pay will be sustained if supported by competent substantial evidence. See, e.g., Cleveland v. Cleveland, 841 So. 2d 648 (Fla. 4th DCA 2003) (holding that competent substantial evidence did not support the trial court’s conclusory finding that husband had the present ability to pay and noting that the presumption of section 61.14(5)(a), Florida Statutes, is rebuttable…
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Martyak v. Martyak, 873 So. 2d 405 (Fla. 4th DCA 2004)…the first step is not a substitute for the separate, affirmative finding of ability to pay required for incarceration.” Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997) (internal quotations omitted). Martyak points to Cleveland v. Cleveland, 841 So. 2d 648 (Fla. 4th DCA 2003). Cleveland relied on Vazquez v. Vazquez, 827 So. 2d 384 (Fla. 4th DCA 2002), where this court reversed a contempt order that failed to meet the requirements of the Florida Family Rules of Procedure. In Vazquez we held: the order…
Previewing 3 of 11 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)
- E.S. v. State, 827 So. 2d 384 (Fla. 4th DCA 2002)
- Vazquez v. Violeta M. Vazquez, 827 So. 2d 384 (Fla. 4th DCA 2002)