GUSTAVO RAMIREZ, APPELLANT,
v.
DIANA RAMIREZ, APPELLEE
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In a dissolution/family law case, the Fourth District Court of Appeal reversed a contempt order and incarceration sanction against Gustavo Ramirez for failure to pay spousal support because the trial court failed to include required statutory findings regarding his present ability to pay and willful noncompliance, and because he was denied the opportunity to present rebuttal evidence.
The contempt order and incarceration sanction must be reversed because: (1) Florida Family Law Rule of Procedure 12.615(d)(1) requires findings that the contemnor had present ability to pay and willfully refused to comply, along with factual bases for those findings; (2) when incarceration is ordered, Rule 12.615(e) requires a separate affirmative finding that the contemnor has present ability to comply with the purge and its factual basis; and (3) the defendant was denied due process by being prevented from presenting rebuttal evidence before the contempt order was entered.
[1] A contempt order for failure to pay support must include findings that the contemnor had the present ability to pay and willfully refused to comply with the prior court o…
[2] A contempt order for failure to pay support must contain a recital of the facts on which findings of present ability to pay and willful refusal to comply are based.
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Join FLexlaw to unlock all legal intelligence“the order on appeal fails to include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fails to contain a recital of the facts on which those findings were based”
Establishes the first basis for reversal—lack of required statutory findings in the contempt order
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Join FLexlaw to unlock all legal intelligenceGustavo Ramirez was ordered to make support payments to Diana Ramirez pursuant to a temporary relief order in their dissolution proceeding. Ramirez fa…
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In this dissolution proceeding, appellant, Gustavo Ramirez, challenges a non-final order finding him in contempt and ordering incarceration as a sanction for failing to make support payments to appellee, Diana Ramirez, pursuant to a previously-entered temporary relief order. We reverse because the order on appeal fails to include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fails to contain a recital of the facts on which those findings were based. See Fla. Fam. L.R.P. 12.615(d)(1) (2011). Additionally, if incarceration is ordered as a sane*435tion as in the instant case, the trial court must include in the order “a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.” Fla. Fam. L.R.P. 12.615(e). Those findings were also not included in the order on appeal. Compare Larsen v. Larsen, 854 So.2d 293, 294-95 (Fla. 4th DCA 2003) (reversing order finding appellant in contempt and recommending incarceration where order failed to find that appellant had the ability to comply with prior order or had the present ability to comply with the purge).
Accordingly, we reverse the order finding appellant in contempt. Further, on remand we direct that a new evidentiary hearing be held because appellant, over objection, was prevented from presenting rebuttal evidence before the contempt order was entered. A person facing civil contempt is entitled to notice and an opportunity to be heard. See Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000). Although appellant had been called to the witness stand by appellee and testified on direct and cross-examination, he was not allowed to present his own case in rebuttal. By preventing appellant from presenting any rebuttal evidence, he was denied the opportunity to be heard. See Hipschman v. Cochran, 683 So.2d 209, 211 (Fla. 4th DCA 1996) (“There must be a hearing before incarceration, where a con-temnor may challenge the allegation of noncompliance and defend on the ground that he does not have the present ability to pay....”).
Reversed and remanded for further proceedings.
WARNER and CONNER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Rocco James Napoli v. Napoli, 142 So. 3d 953 (Fla. 4th DCA 2014)…, 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. Fla. Fam. L. R. P. 12.615(d)(1) (emphasis added); see also Ramirez v. Ramirez, 84 So. 3d 434, 434 (Fla. 4th DCA 2012) (reversing contempt order because it did not “include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fail[ed] to contai…
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Haeberli v. Ayla B. Haeberli, 157 So. 3d 489 (Fla. 5th DCA 2015)…esent ability to pay support, and 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.” Fla. Fam. L.R.P. 12.615(d)(1); see Ramirez v. Ramirez, 84 So. 3d 434, 434 (Fla. 4th DCA 2012) (reversing contempt order because it did not "include the required findings that appellant had the present ability to pay the support and that he willfully refused to comply with the prior court order, and fail[ed] to contai…
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Perez v. Borga, 283 So. 3d 815 (Fla. 4th DCA 2019)
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bresch v. Cal Henderson, 761 So. 2d 449 (Fla. 2d DCA 2000)
- Hipschman v. Cochran, 683 So. 2d 209 (Fla. 4th DCA 1996)
- Larsen v. Larsen, 854 So. 2d 293 (Fla. 4th DCA 2003)