JAY PIERCE, APPELLANT,
v.
LINDA E. PIERCE, APPELLEE
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The court held that a trial court must make a separate affirmative finding of present ability to pay a purge amount before incarcerating a civil contemnor.
Jay Pierce appealed a civil contempt order for failure to pay alimony, arguing the trial court erred in denying his motion to continue and in finding …
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Jay Pierce appeals an order holding him in civil contempt for failure to pay alimony to his former wife.
Mr. Pierce argues that the trial court erroneously denied his motion to continue so that the trial court could hear his supplemental petition to modify alimony together with the contempt motion. We find no error. Even if the trial court had considered the two motions simultaneously, it could not have reduced the alimony due prior to the filing of the supplemental petition. See Ray v. Ray, 707 So.2d 358, 360 (Fla. 2d DCA 1998).
Mr. Pierce also argues that the contempt order is unsupported by competent, substantial evidence. We affirm, without further discussion, the trial court’s determination that Mr. Pierce could pay the arrearage. However, we must reverse as to that portion of the order imposing incarceration upon Mr. Pierce; the trial court failed to make a separate affirmative finding that Mr. Pierce had the present ability to pay $25,000 to purge himself of the contempt. See Fla. Fam. L.R.P. 12.615(e);1 Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985) (holding that the trial court may not incarcerate a civil con-temnor without an affirmative finding that he has the ability to pay the purge amount). Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
ALTENBERND and CASANUEVA, JJ., Concur.
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Citator
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Rosenblum v. Anne R. Rosenblum, 178 So. 3d 49 (Fla. 1st DCA 2015)…gation determined to be appropriate as a result of his= motion to modify, however, should have been taken into consideration in establishing the arrearage amount, if any, due after the date the motion to modify was filed. See Pierce v. [*51] Pierce, 18 So. 3d 1074 (Fla. 2d DCA 2009) (noting that alimony could not be reduced for period prior to filing of supplemental petition to modify). Accordingly, we reverse the judgment in part and remand for further proceedings on the former husband’s motion to modify ch…
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Arias v. Arias, 133 So. 3d 533 (Fla. 2d DCA 2013)…contempt order, that the Former Husband has a retirement account. Because there was no evidence that the Former Husband had the present ability to pay the purge amount, the trial court erred in ordering that he be incarcerated. See Pierce v. Pierce, 18 So. 3d 1074, 1075 (Fla. 2d DCA 2009) (holding that a trial court must make an affirmative finding that a person has [*535] the present ability to pay the purge amount before ordering that he or she be incarcerated for civil contempt pursuant to rule 12.615(e)).…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- RAY v. RAY, 707 So. 2d 358 (Fla. 2d DCA 1998)