ROCCO JAMES NAPOLI, APPELLANT,
v.
SUSAN CAMPBELL NAPOLI, APPELLEE

Fla. 4th DCA | 2014-07-16
No. 4D14-234
WARNER and MAY, JJ., concur.
142 So. 3d 953 Florida District Court of Appeal, Fourth District (2014) Caution
Cited by 9 cases

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Synopsis

Husband appealed a contempt order for failure to pay temporary spousal support. The Fourth District reversed because the trial court's written contempt order failed to include the required findings and factual recitations mandated by Florida Family Law Rules of Procedure Rule 12.615.


Holding

The contempt order was legally deficient and must be reversed and remanded because it failed to: (1) contain an express finding that Husband willfully failed to comply with the temporary relief order; (2) articulate facts supporting the conclusion that Husband had ability to comply; and (3) contain a separate affirmative finding that Husband had present ability to comply with the purge amount when imposing incarceration.


Headnotes

[1] A written order of civil contempt for failure to pay support must contain express findings that a prior order of support was entered, that the alleged contemnor failed to…

[2] A written order of civil contempt must include a recital of the facts upon which the findings of willful failure to pay support and ability to pay are based.

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Key Quotes

“When a trial court finds that a civil contempt has occurred, it must enter a written order containing: a finding that a prior order of support 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.”

Establishes the mandatory requirements for civil contempt orders under Florida Family Law Rules of Procedure Rule 12.615(d)(1)

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Facts & Procedural History

During divorce proceedings, the trial court ordered Husband to pay temporary spousal support to Wife according to a specific payment schedule. Husband…

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Opinion of the Court
DAMOORGIAN, C.J.

DAMOORGIAN, C.J.

Rocco James Napoli (“Husband”) appeals the trial court’s order holding him in contempt for failure to pay temporary spousal support to Susan Campbell Napoli (“Wife”). We reverse and remand for further proceedings because the trial court’s contempt order does not contain the written findings required by rule 12.615 of the Florida Family Law Rules of Procedure. The Husband raises several other challenges to the contempt order, which we reject without further comment.

During the pendency of the parties’ divorce case, the trial court entered a temporary relief order requiring the Husband to pay spousal support to the Wife. The Husband did not comply with the payment schedule set forth in the order and the Wife moved to hold him in contempt. After a hearing on the Wife’s motion,1 the trial court entered an order finding the Husband in “direct civil contempt of court for his failure to comply with a valid Court order despite his ability to do so.” The contempt order states that the Husband failed to pay “a single dollar of alimony to the Wife.” It also provides for the Husband’s incarceration unless he pays the purge amount of $2,500 within fifteen days of the order. This appeal follows.

“A judgment of contempt comes to the appellate court clothed with a presumption of correctness and will not be overturned unless ... the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental *955error.” DeMello v. Buckman, 914 So.2d 1090, 1093 (Fla. 4th DCA 2005). On appeal, the Husband argues that the trial court’s written contempt order is legally deficient. We agree and reverse.

When a trial court finds that a civil contempt has occurred, it must enter a written order containing:

a finding that a prior order of support 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.

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 contain a recital of the facts on which those findings were based”). If the court imposes incarceration as a sanction, the order must also contain “‘a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.’ ” Ramirez, 84 So.3d at 434-35 (quoting Fla. Fam. L. R. P. 12.615(e)).

We hold that the written contempt order in this case does not comport with these requirements. First, the contempt order does not contain an express finding that the Husband willfully failed to comply with the court’s temporary relief order. Second, the contempt order does not articulate the facts supporting the court’s conclusion that the Husband had the ability to comply with the court’s prior order. Finally, the contempt order sanctions the Husband with incarceration but does not contain a separate, affirmative finding that he had the present ability to comply with the purge.

For these reasons, we reverse the contempt order and remand the case to the trial court for further proceedings. See Connolly, 543 So.2d at 357.

Reversed and Remanded.

WARNER and MAY, JJ., concur.


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Citator

Cited By

  • Williams v. Williams, 152 So. 3d 702 (Fla. 1st DCA 2014)
    …to pay is required. See Fla. Fam. L.R.P. 12.615(e) (“The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.”); Napoli v. Napoli 142 So. 3d 953, 955 (Fla. 4th DCA 2014). And the order on appeal does not expressly make such a finding, though the record includes the Former Husband’s financial affidavit showing $511 cash on hand. However, where an error by the court appears for the first time…
  • Sandelier v. State, 238 So. 3d 831 (Fla. 4th DCA 2018)
    …ve the right to an attorney and appeal in that regard. Thank you. The court entered a judgment and sentence on direct criminal contempt, from which the defendant now appeals. We review contempt orders for an abuse of discretion. Napoli v. Napoli, 142 So. 3d 953, 954–55 (Fla. 4th DCA 2014). Our supreme court has held that a party who is ordered by the trial court to appear at a scheduled hearing, but fails to do so, must be found in indirect criminal contempt, rather than in direct criminal contempt. State…
  • Jacobs v. Jacques, 310 So. 3d 1018 (Fla. 2d DCA 2020)
    …ed with a presumption of correctness and will not be overturned unless . . . the trial court either abused its discretion or departed so substantially from the essential requirements of law as to have committed fundamental error." Napoli v. Napoli, 142 So. 3d 953, 954-55 (Fla. 4th DCA 2014) (quoting DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005)). Similarly, we review "an award of attorney's fees . . . for abuse of discretion." Ingram v. Ingram, 277 So. 3d 718, 718-19 (Fla. 2d DCA 2019) (quo…

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