LAWRENCE S. ROBERTS, APPELLANT,
v.
LUCY N. ROBERTS, APPELLEE
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The court held that a party in default bears the burden of proving inability to comply with alimony and child support payments, and it is erroneous to require payment of future sums to purge contempt.
Appellant appealed an order adjudging him in contempt for failing to pay alimony and child support. The order required payment of past due and future …
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PER CURIAM.
This is an interlocutory appeal from an order adjudging appellant to be in contempt of court for failure to pay certain alimony and child support payments due under the terms of a final judgment of dissolution of marriage. The order sentenced appellant to a term of imprisonment and provided that appellant could purge himself (speaking generally) by paying the sums of money already accrued and past due and by paying the sums to become due in the future.
We affirm in part and reverse in part with these comments:
A. Appellant being in default, the burden of proving his inability to comply and that his failure was not willful rests upon appellant. Garo v. Garo, 327 So. 2d 845 (Fla.App. 4th (1976)).
B. While the order of presentation was confused, the cause for this lay at appellant’s door. It is our opinion from the record that appellant had adequate opportunity to present his testimony and position. Further, the record supports the appealed adjudication of contempt.
C. Without detailing, we disagree with the Court’s action which required appellant to pay sums not yet due, as it is erroneous to require a person to pay amounts not yet due in order to purge himself of contempt. We reverse only that part of the order which requires as a condition of appellant’s purging himself that he pay sums coming due in the future. See Hilson v. Hilson, 145 So. 2d 557 (Fla.App. 3rd 1962).
Affirmed in part and reversed in part and remanded for further proceedings consistent herewith.
AFFIRMED IN PART AND REVERSED IN PART.
WALDEN, C. J., DOWNEY, J., and McCAULEY, JAMES A., Associate Judge, concur.
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Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979)…der was in part erroneous since it improperly conditioned the contemnor’s ability to purge himself upon his making future support payments (as well as those past-due ones for the non-payment of which he was held in contempt). See Roberts v. Roberts, 328 So. 2d 461 (Fla. 4th DCA 1976); Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962). . This relief is of course granted without prejudice to any further and appropriate proceedings in the Dade County Circuit Court. Avery v. Sinclair, 153 Fla. 767, 15 So. 2d 8…
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POE v. POE, 811 So. 2d 789 (Fla. 4th DCA 2002)…al purge condition. In a civil contempt proceeding the contemnor must have the present ability to pay the purge amount. Accordingly, a contemnor cannot be required to pay amounts not yet due in order to purge himself of contempt. Roberts v. Roberts, 328 So. 2d 461, 462 (Fla. 4th DCA 1976). Hence, we affirm the lower court’s contempt finding and award of attorney’s fees. We reverse and remand with directions for the circuit court to strike that portion of the contempt order which requires as a purge provisio…
Authorities Cited
- Ottis Tal Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962)
- Garo v. Garo, 327 So. 2d 845 (Fla. 4th DCA 1976)