2-14 Florida Family Law Practice Manual - 14.05

2-14 Florida Family Law Practice Manual § 14.
05
Florida Family Law Practice Manual > CHAPTER 14 ENFORCEMENT
§ 14.05 CONTEMPT
Contempt proceedings are the most usual method of enforcing final judgments in dissolution cases.
Although modification proceedings are treated as new actions,1 contempt actions are considered
continuations of the original dissolution proceeding. Nevertheless, service in contempt actions must be
made personally upon respondents,2 rather than their attorneys, in the original proceedings unless there
are still matters pending, such as petitions for rehearing.
Contempt proceedings in support cases have been constitutionally upheld on the theory that such
proceedings are necessary to prevent children and other dependents from becoming public charges,3
or suffering extreme deprivation as a result of their dependency upon irresponsible supporters.
Contempt is an equitable remedy and should be exercised only when the respondent’s failure is the
result of a willful refusal to comply with the court’s order and then only when equity demands it.4
Willful refusal to comply with a support order is determined as part of a multi-step civil contempt
analysis set forth by the Florida Supreme Court in the context of deciding when incarceration may
properly be imposed as a sanction for failure to pay support.5 Pursuant to the Supreme Court’s analysis,
because an initial order or judgment directing a party to pay support is predicated on an affirmative
finding that the party has the ability to pay, the initial judicial determination creates, in subsequent
proceedings, a presumption that there is an ability to pay, and the obligor has the burden to show that
1
Fla. R. Civ. P. 1.110(h).
2
See Wood v. Wood, 276 So. 2d 527 (Fla. 3d DCA 1973), in which service in the original action was by publication and the court ruled
that enforcement could proceed in rem but not by contempt or execution. See also Periolat v. Periolat, 336 So. 2d 1256 (Fla. 2d DCA
1976); Gelkop v. Gelkop, 384 So. 2d 195 (Fla. 3d DCA 1980).
3
See Plummer v. Copeland, 408 So. 2d 686 (Fla. 1st DCA 1982) (contempt may be used to enforce payment of child support assigned
to state).
4
Department of Revenue ex rel. Brinson v. Evans, 706 So. 2d 933 (Fla. 2d DCA 1998) (improper to find father in contempt for
arrearages accrued during the time of his incarceration); Andrews v. Walton, 428 So. 2d 663 (Fla. 1983) (where father had ability to pay
but willfully refused, court order of incarceration without appointing council was justified); Petrucci v. Petrucci, 252 So. 2d 867 (Fla.
3d DCA 1971); Gottesman v. Gottesman, 220 So. 2d 640 (Fla. 3d DCA 1969); Goff v. Goff, 151 So. 2d 295 (Fla. 3d DCA 1963); see
also Glaeser v. Glaeser, 449 So. 2d 428 (Fla. 2d DCA 1984); Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA 1984).
5
See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); see also [1], below (discussion of incarceration for failure to pay support).
2-14 Florida Family Law Practice Manual § 14.05
he or she lacks the ability to purge himself or herself from the contempt.5.1 Therefore, in a civil
contempt proceeding for failure to pay child support or alimony, the movant must show that a prior
court order directed the respondent to pay the support or alimony, and that the respondent has failed
to make the ordered payments. The burden of producing evidence then shifts to the respondent, who
must dispel the presumption of ability to pay by demonstrating that, due to circumstances that have
been beyond his or her control and that have intervened since the time the order directing him or her
to pay was entered, he or she no longer has the ability to meet his or her support obligations. The trial
court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the
respondent has willfully violated the support order.5.2 If the court finds that he or she possessed the
ability to pay, did not pay, and has therefore willfully violated the support order and is in civil
contempt, then the court must determine how to obtain him or her to comply with the court order. If
incarceration is deemed appropriate, the court must make a separate, affirmative finding that the
respondent-contemnor possesses the present ability to comply with purge conditions to be set forth by
the court in the contempt order. In determining whether the contemnor possesses the present ability to
pay the purge amount, the trial court is not limited to the amount of cash immediately available to the
contemnor; rather, the court may look to all assets from which the amount might be obtained.5.3
Thus, a trial court considers an obligor’s ability to pay at the following two points in the civil contempt
analysis:5.4
(1) Initially, when the court determines whether the respondent willfully refused to pay.
(2) Later, if the court determines that the respondent is in contempt, when the court determines
whether the respondent-contemnor possesses the present ability to satisfy a monetary condition
for release from incarceration that is contemplated by the court.
5.1
See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
5.2
See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
5.3
See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); see also [1], below (discussion of present ability to pay purge amount and gain
release from incarceration for failure to pay support).
5.4
See Wix v. Wix, 159 So. 3d 312, 314 (Fla. 2d DCA 2015) (discussing Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985)).
Page 2 of 37
In the trial court’s initial determination of ability to pay, the court must consider the respondent’s
possession of 401k or IRA funds in determining his or her ability to pay. Therefore, the availability of
401k or IRA funds will properly affect the court’s determination of whether the obligor willfully
refused to pay his or her alimony obligation and should be found in contempt.5.5 Additionally, even if
the trial court determines that the respondent is not in contempt, the court may consider his or her 401k
or IRA funds for purposes of determining whether he or she has the ability to pay the arrearage that
gave rise to the contempt proceedings.5.6
Property division awards may not be enforced by contempt.6 Thus, if an order to pay mortgage
payments is solely in the nature of property settlement, it is not enforceable, but see Lee v. Lee,7 where
the First District Court of Appeal affirmed the trial court’s order finding the husband in contempt for
failure to pay one-half of the mortgage payment, where the obligation was a portion and an integral
part of his duty to support. In another First District case, the appeals court held that a lump sum
alimony award to a wife was intended by the trial court to function as support and not as a distribution
of marital property, and therefore, the award was enforceable as contempt. Although the lump sum
alimony was awarded due to the husband’s failure to pay the wife income earned on her portion of a
marital business as required by an equitable distribution order, the trial court expressly stated that the
award was to provide the wife with a “stream of support” and the evidence clearly established the
wife’s need for support and the husband’s ability to pay. Therefore, the substance of the award was to
provide support, and it was properly enforced through contempt by the lower court.8 The Fourth
District Court of Appeal held that although no support was awarded to a wife in original dissolution
proceedings, the trial court did not abuse its discretion in determining that the husband’s obligation to
maintain life insurance as security for the couple’s property settlement was in the nature of support and
5.5
Wix v. Wix, 159 So. 3d 312 (Fla. 2d DCA 2015).
5.6
Wix v. Wix, 159 So. 3d 312 (Fla. 2d DCA 2015).
6
Kadanec v. Kadanec, 765 So. 2d 884, 886 (Fla. 2d DCA 2000).
7
Lee v. Lee, 710 So. 2d 186 (Fla. 1st DCA 1998).
8
See Bongiorno v. Yule, 920 So. 2d 1209 (Fla. 1st DCA 2006).
Page 3 of 37
was therefore enforceable by contempt.9 In contrast, in a case in which the trial court had denied any
award of alimony, Kadanec v. Kadanec, the Second District Court of Appeal reversed a post-judgment
order finding the husband in contempt for failing to pay the wife a lump sum amount representing
one-half of the cash value of the husband’s 401(k) plan, because the award was part of the trial court’s
equitable distribution scheme and the trial court’s reference to the award in its post-judgment order as
a bridge-the-gap award was error.9.1
In some instances, a court may use its contempt power to enforce a property award even though the
award does not constitute an award of support. Specifically, contempt proceedings may be used to
enforce a property award if the enforcement relates to the performance of an act other than the payment
of money. For example, requiring a party to (1) designate a former spouse as the beneficiary of a life
insurance policy,10 (2) execute a contract for the sale of real estate,11 or (3) execute documents
releasing the party’s interest in various properties,12 have all been held to be enforceable by contempt.
However, some courts appear to reject contempt as a means of enforcing any property settlement order,
even if the order requires the performance of an act other than the payment of money. For example,
the Second District suggested that an order requiring a former husband to either deliver personal
property to his former wife or pay her the reasonable value of the property could not be enforced by
contempt if the property was awarded as a settlement of property rights.13 However, in a more recent
decision, the Second District held that a trial court did not err in holding a husband in contempt for
refusing to sign a mortgage and promissory note to secure the wife’s equitable distribution award.14
The district court explained that the trial court had not held the husband in contempt for failing to pay
money, but rather had held him in contempt for failing to perform another type of act that he was fully
capable of performing. Such use of contempt is permitted by Florida Rule of Civil Procedure
9
Morrell v. Morrell, 103 So. 3d 985, 985 (Fla. 4th DCA 2012).
9.1
See Kadanec v. Kadanec, 765 So. 2d 884, 886 (Fla. 2d DCA 2000).
10
See Riley v. Riley, 509 So. 2d 1366, 1370 (Fla. 5th DCA 1987).
11
See Firestone v. Ferguson, 372 So. 2d 490, 492 (Fla. 3d DCA 1979).
12
See Burke v. Burke, 336 So. 2d 1237, 1238 (Fla. 4th DCA 1976).
13
See Loury v. Loury, 431 So. 2d 701, 703 n.1 (Fla. 2d DCA 1983).
14
See Roth v. Roth, 973 So. 2d 580, 591 (Fla. 2d DCA 2008).
Page 4 of 37
1.570(c)(2), which is incorporated into the family law procedural rules by Florida Family Law Rule
of Procedure 12.570.15 Finally, the Second District recognized that in La Roche v. La Roche,16 the Fifth
District Court of Appeal reversed an order finding a wife in contempt for her failure to give the
husband a quitclaim deed to the marital residence. However, the Second District observed, the Fifth
District in La Roche based its holding on the general proposition that property awards are not
punishable by contempt, and the court did not reference Rule 1.570(c)(2).17 The Second District
certified conflict with LaRoche to the extent its holding conflicted with the Second District’s holding
that contempt may be used to enforce an order affecting property if the order is not one to pay money.18
Enforcement by contempt (or other means) is discretionary19 and based on equitable considerations,20
which may include the financial status of the parties,21 conduct of the parties,22 or radically changed
circumstances.23 See Atlas v. Atlas,24 where the Fourth District Court of Appeal ruled that where the
husband failed to rebut the presumption of his ability to pay support as agreed to in a settlement
agreement, the finding of contempt was proper. It was also proper to draw a negative inference from
the husband’s invocation of the Fifth Amendment. Also see Fernandez v. Fernandez,25 where the
Fourth District Court of Appeal affirmed the trial court’s finding that the husband did not rebut his
ability to pay when it rejected his testimony that he did not own an annuity at the time of the
dissolution. However, even though courts, for strong equitable reasons in proper cases, may refuse to
15
See Roth v. Roth, 973 So. 2d 580, 591–592 (Fla. 2d DCA 2008); see also Fla. R. Civ. P. 1.570(a) (final process to enforce judgment
solely for payment of money must be by execution, writ of garnishment, or some other appropriate process), (c)(2) (trial court may
enforce order requiring performance of specific act through contempt).
16
La Roche v. La Roche, 662 So. 2d 1018 (Fla. 5th DCA 1995).
17
See La Roche v. La Roche, 662 So. 2d 1018 (Fla. 5th DCA 1995).
18
See Roth v. Roth, 973 So. 2d 580, 592 (Fla. 2d DCA 2008).
19
Grobleski v. Grobleski, 489 So. 2d 104 (Fla. 2d DCA 1986); Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984); Fox v.
Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980); Moreland v. Moreland, 358 So. 2d 907 (Fla. 1st DCA 1978); Smithwick v. Smithwick,
343 So. 2d 945 (Fla. 3d DCA 1977); Teta v. Teta, 297 So. 2d 642, 645 (Fla. 1st DCA 1974).
20
Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980); Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977).
21
Feder v. Feder, 291 So. 2d 641 (Fla. 3d DCA. 1974).
22
Satterfield v. Satterfield, 39 So. 2d 72 (Fla. 1949); Lascaibar v. Lascaibar, 715 So. 2d 1042 (Fla. 3d DCA 1998) (in the face of the
husband’s repeated failure to pay support, the court should have considered indirect criminal proceedings and other remedies).
23
Pottinger v. Pottinger, 182 So. 762 (Fla. 1938); Boyle v. Boyle, 194 So. 2d 64 (Fla. 3d DCA 1967).
24
Atlas v. Atlas, 708 So. 2d 296 (Fla. 4th DCA 1998).
25
Fernandez v. Fernandez, 727 So. 2d 1108 (Fla. 4th DCA 1999).
Page 5 of 37
utilize equitable remedies to enforce its orders, they may not deny to petitioners the availability of legal
remedies, such as judgments for arrears.26 The Fourth District Court of Appeal in Hayden v. Hayden,27
indicated that the trial court, upon remand, could take additional testimony from the former wife
regarding and determining the payments she could expect from the husband’s pension plan to secure
the arrearages of alimony. See Walker v. Edel,28 where the Fifth District Court of Appeal found error
when the trial court failed to hear the husband’s arguments after the wife presented evidence of his
ability to pay. But see Lawrence v. Department of Revenue o/b/o Walker,29 where the Second District
Court of Appeal found error with the trial court when it found the husband in contempt after he
presented evidence in rebuttal to the assertion that he had the ability to pay the ordered support. In a
review of Coleman v. Coleman,30 the supreme court affirmed the decision of the Fourth District to
allow an income deduction order for the collection of alimony arrearages even after the wife had no
minor children living with her.
Unless strong equitable reasons exist not to enforce orders by equitable remedies, courts must make
them available.31 In Vetrick v. Hollender,32 the Fourth District Court of Appeal remanded the matter
of the husband’s incarceration for contempt for an evidentiary hearing, to determine whether he either
waived or is barred by the doctrine of res judicata from asserting his motion to strike the contempt
enforcement of a 1983 judgment, where the order of contempt and incarceration was based on the
nonpayment of attorney fees and his failure to execute documents relating to the parties’ marital home.
See also Knorr v. Knorr,33 where the Second District Court of Appeal determined that the contempt
order departed from the essential requirements of the law, where it required the husband to pay bills
26
Moran v. Moran, 634 So. 2d 275 (Fla. 4th DCA 1994) (where the parties filed postjudgment motions for contempt, it was error for
the court to redetermine the parties’ property rights and order the husband to repay the wife for items of personal property); Ashe v. Ashe,
509 So. 2d 1146 (Fla. 1st DCA 1987); Feder v. Feder, 291 So. 2d 641 (Fla. 3d DCA 1974); Satterfield v. Satterfield, 39 So. 2d 72 (Fla.
1949); Janger v. Robinson, 41 Fla. Supp. 1 (Fla. 4th DCA 1974).
27
Hayden v. Hayden, 662 So. 2d 713 (Fla. 4th DCA 1995).
28
Walker v. Edel, 727 So. 2d 359 (Fla. 5th DCA 1999).
29
Lawrence v. Department of Revenue ex rel. Walker, 755 So. 2d 139 (Fla. 2d DCA 1999).
30
Coleman v. Coleman, 629 So. 2d 103 (Fla. 1993).
31
Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977).
32
Vetrick v. Hollander, 743 So. 2d 1128 (Fla. 4th DCA 1999).
33
Knorr v. Knorr, 751 So. 2d 64 (Fla. 2d DCA 1999).
Page 6 of 37
which he had previously been advised that he was not required to pay, and further that nonsupport
related debts are not enforceable by the threat of incarceration. In Simpson v. Simpson,34 the Third
District Court of Appeal reversed the trial court for finding the husband in contempt for failure to make
house payments, where the wife agreed to take the house because she couldn’t rely on the husband to
make the payments. On the other hand, if respondents are really in financial difficulty, courts may
withhold even legal remedies.35
See also, Harrod v. Gaglioti,36 in which the Third District Court of Appeal ruled that contempt was
proper for the wife’s failure to return an antique clock, as the husband had a pecuniary interest in the
subject matter. And in McMullan v. McMullan,37 the Fifth District Court of Appeal ruled that the trial
court properly held the husband in contempt for failing to turn over a vehicle as ordered and
committing a fraud on the court by preparing and presenting false documents. But see Motil v. Motil,38
in which the Second District Court of Appeal determined that it was improper to enter an income
deduction order which required the husband’s pension plan to make payments to the wife to fulfill the
trial court’s equitable distribution plan.
When courts do withhold enforcement, they do not, of course, eliminate the debt because past due
support payments become vested property rights of which parties cannot be deprived except by due
process of law.39 They simply make them worthless,40 at least until or unless the respondent gets back
on his feet again.
34
Simpson v. Simpson, 678 So. 2d 882 (Fla. 3d DCA 1996).
35
Goldin v. Goldin, 346 So. 2d 107 (Fla. 3d DCA 1977), citing Gottesman v. Gottesman, 220 So. 2d 640 (Fla. 3d DCA 1969).
36
Harrod v. Gaglioti, 706 So. 2d 122 (Fla. 3d DCA 1998).
37
McMullan v. McMullan, 760 So. 2d 1099 (Fla. 5th DCA 2000).
38
Motil v. Motil, 771 So. 2d 1251 (Fla. 2d DCA 2000).
39
Smith v. Smith, 293 So. 2d 767 (Fla. 2d DCA1974); Gottesman v. Gottesman, 220 So. 2d 640 (Fla. 3d DCA1969). More recently
Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980).
40
See Comment, Family Law Section Newsletter, Fla. Bar Ass’n (Spring 1977).
Page 7 of 37
Note that contempt is available only when an order of this state has been disobeyed.41 A foreign decree
may be domesticated, and its terms will then be able to be enforced. But until a respondent has
disobeyed the order of a Florida court, contempt is not an available remedy.42
In Robinson v. Robinson,43 the First District Court of Appeal held that an Alabama contempt order
should be given full faith and credit since the manner of its issuance was valid in Alabama. The fact
that Alabama does not require a finding that the contemnor has the present ability to pay and willfully
refuses to do so does not affect the order’s entitlement to full faith and credit. In Weiss v. Weiss,43.1 the
Second District Court of Appeal held that full faith and credit required a Florida court to enforce a
foreign money judgment and a “contempt feature” of the judgment, which was entered in contempt
proceedings validly instituted in Illinois to enforce a marital property settlement agreement between
the parties. In Weiss, the Illinois judgment found the husband to be in contempt for failure to pay the
premiums on life insurance policies that he had been ordered to maintain for the wife’s benefit as part
of their marital property settlement and his failure to repay loans he took out on the policies. The
Illinois judgment also ordered the husband to pay the total money amount of his delinquencies under
the property settlement, plus interest and attorneys’ fees, to the wife.43.2 The judgment did not order
incarceration of the husband, but Illinois law permitted incarceration as a means of enforcing a marital
property settlement.43.3 The judgment was domesticated in Florida, where the trial court ruled that it
could enforce the judgment because it was validly entered in Illinois.43.4 The Second District affirmed
based on the Full Faith and Credit Clause of the United States Constitution.43.5 The district court
acknowledged that Florida public policy as set forth in the Florida Constitution prohibits imprisonment
41
See Grotnes, 338 So. 2d 1122 (Fla. 4th DCA 1976).
42
Kozlik v. Kozlik, 416 So. 2d 481 (Fla. 4th DCA 1982).
43
Robinson v. Robinson, 487 So. 2d 67 (Fla. 1st DCA 1986).
43.1
Weiss v. Weiss, 100 So. 3d 1220 (Fla. 2d DCA 2012).
43.2
See Weiss v. Weiss, 100 So. 3d 1220, 1223–1224 (Fla. 2d DCA 2012).
43.3
See Weiss v. Weiss, 100 So. 3d 1220, 1224 (Fla. 2d DCA 2012).
43.4
43.5
See U.S. Const. art. IV, § 1.
Page 8 of 37
for debt.43.6 However, the district court avoided ruling squarely on the issue of whether the
obligor-husband in the case before it would be subject to incarceration for contempt, because neither
the Florida trial court nor the Illinois court had ordered that he be incarcerated. The Second District
explained that incarceration was not the only coercive sanction available to the Florida court.43.7
Finally, the court noted that in both Florida and Illinois, an award of attorneys’ fees may be enforced
through contempt, including incarceration. Thus, the trial court in the instant case was authorized to
enforce the Illinois court’s award of fees to the wife through civil contempt and incarceration, if the
husband had the ability to pay.43.8
In Bennett v. Gibson,44 the Second District Court of Appeal certified the following question to the
Florida Supreme Court:
DO THE CIRCUIT COURTS OF THIS STATE HAVE JURISDICTION TO ENFORCE A
FOREIGN JUDGMENT FOR ARREARAGES OF ALIMONY OR CHILD SUPPORT BY
MEANS OF EQUITABLE REMEDIES INCLUDING CONTEMPT?
In answer to the certified question, the Florida Supreme Court held that a judgment for support
arrearages is enforceable by contempt proceedings after a child has reached the age of majority.45 The
court noted that emancipation does not extinguish a support-obligated parent’s responsibility to pay the
past due support.
Although the decision whether to enforce a Florida support obligation by contempt is within the
discretion of the Florida trial court, the use of a writ of bodily attachment to bring a contemnor before
the court if he or she fails to comply with the purge provisions of a civil contempt order is governed
43.6
See Fla. Const. art. I, § 11.
43.7
43.8
See Weiss v. Weiss, 100 So. 3d 1220, 1225 n.8 (Fla. 2d DCA 2012) (citing Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985)
(incarceration for civil contempt cannot be imposed without finding by trial court that contemnor has present ability to purge himself
of contempt)).
44
Bennett v. Gibson, 510 So. 2d 1234 (Fla. 2d DCA 1987).
45
Gibson v. Bennett, 561 So. 2d 565 (Fla. 1990).
Page 9 of 37
by statute.46 Because the governing statute contains many Florida-specific references and in some
respects would be impossible to comply with outside of Florida, a trial court does not have authority
to issue a writ of bodily attachment for execution outside Florida.47
Another matter considered by the Fifth District Court of Appeal dealt with the dismissal of a rule to
show cause for failure to pay child support in the matter of Malone v. Malone.48 In their marital
settlement agreement, the parties agreed to an automatic increase in child support. The appellate court
stated that this approach is generally not favored as it lacks a foundation evidencing that automatic
need and ability to pay have substantially changed. However, since the husband had previously agreed
to the automatic increases and had not appealed, the appellate court ruled that it was error for the trial
court to dismiss the wife’s rule to show cause.
Where the entire matter of obligations of the parties is submitted to the Florida court, this court is not
required to give comity to provisions of a prior temporary foreign order,49 particularly when the latter
order conflicts with Florida law or public policy.
[1] WHEN IS INCARCERATION PROPER AND WHEN IS THE RIGHT TO

APPOINTMENT OF COUNSEL TRIGGERED?
For many years, the imposition of civil contempt has been the primary method of enforcing unpaid
alimony, child support, and attorney’s fees. See Pefaur v. Pefaur,50 where the Third District Court of
Appeal ruled that it was improper to incarcerate the husband for failure to attend mediation or produce
the parties’ children for visitation. In Faircloth v. Faircloth,51 the Florida Supreme Court stated that “a
trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to
comply with the order and willfully refuses to do so; or (2) that the petitioner previously had the ability
46
See Fla. Stat. § 61.11(2);; see also Fla. Fam. L. R. P. 12.615(e) (following deferred incarceration of contemnor and failure of
contemnor to purge contempt, court may issue writ of bodily attachment by which contemnor may be brought before court).
47
Sanders v. Laird, 865 So. 2d 649 (Fla. 2d DCA 2004) (addressing question as one of first impression in Florida).
48
Malone v. Malone, 637 So. 2d 76 (Fla. 5th DCA 1994).
49
Winikoff v. Winikoff, 339 So. 2d 262 (Fla. 3d DCA 1976).
50
Pefaur v. Pefaur, 661 So. 2d 854 (Fla. 3d DCA 1995).
51
See Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976).
Page 10 of 37
to comply, but divested himself of that ability through his fault or neglect designed to frustrate the
intent and purpose of the order.”52
The key safeguard in civil contempt proceedings is the ability of the contemnor to purge the
contempt.53 Therefore, a civil contempt order must contain a specific purge provision that adequately
informs the contemnor what he or she must do to purge the contempt.54 In addition, if incarceration
is under consideration as a possible remedy for civil contempt by a party, there must be a separate
affirmative finding that the party has the ability to comply with the purge conditions set forth in the
contempt order.55 In family law civil contempt proceedings based on a contemnor’s failure to pay
court-ordered support, the court must set a purge amount and may not order the contemnor to jail
unless the court affirmatively finds that he or she has the present ability to pay the purge amount.56 See
Brown v. Manning,57 where the Third District ruled that without a finding of present ability to pay the
purge amount, it was error to find a party in civil contempt and place him in jail. See Blackwelder v.
Vedder,58 where the trial court erred in incarcerating the husband for contempt where he met the burden
of showing his inability to pay the purge amount when he established that he did not maintain control
or derive income from a formerly owned business. The contemnor must also be provided with the
opportunity to purge himself anytime after incarceration.59 The Florida Supreme Court, in Gregory v.
Rice,60 affirmed that it is improper to incarcerate a spouse for failure to pay child support without a
determination of the present ability to purge, but it went on to state that the order of incarceration must
detail all the findings of fact and that the trial court, if asked to review, must review the entire record
of the proceedings, as well as confirm that the contemnor has been advised of his or her rights under
52
Faircloth v. Faircloth, 339 So. 2d 650, 651 (Fla. 1976); see also Washburn v. Washburn, 647 So. 2d 1044 (Fla. 4th DCA 1994);
McConnell v. McConnell, 552 So. 2d 237 (Fla. 1st DCA 1989) (order reversed where it lacked the requisite findings); Hernandez v.
Hernandez, 478 So. 2d 458 (Fla. 3d DCA 1985); Good v. Good, 463 So. 2d 456 (Fla. 2d DCA 1985).
53
See Parisi v. Broward County, 769 So. 2d 359, 365 (Fla. 2000).
54
Lanza v. Lanza, 804 So. 2d 408 (Fla. 4th DCA 2001).
55
Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985).
56
Bowen v. Bowen, 471 So. 2d 1274, 1278 (Fla. 1985).
57
Brown v. Manning, 696 So. 2d 1367 (Fla. 3d DCA 1997).
58
Blackwelder v. Vedder, 734 So. 2d 523 (Fla. 5th DCA. 1999).
59
Carter v. Carter, 645 So. 2d 107 (Fla. 5th DCA. 1994).
60
Gregory v. Rice, 727 So. 2d 251 (Fla. 1999); Florida Family Rule 12.615.
Page 11 of 37
the rule. Failure to identify sources from which a contemnor can obtain funds to pay the purge amount
constitutes reversible error.61 The Fifth District Court of Appeal found no error with the court’s finding
of contempt in Cowan v. Cowan,62 except with the court’s order of incarceration upon the payor’s
failure to meet the purge schedule. The Fifth District stated that the court must conduct a hearing to
determine the payor’s present ability to make the installment due. The trial judge’s finding that the
husband had the ability to pay, “unless he has willfully divulged himself of the means to do so,” did
not constitute an affirmative finding of present ability to comply.63 See also, Brown v. Smith,64 where
the Fourth District Court of Appeal ruled that the trial court properly did not incarcerate the husband
for failure to pay support where he did not have the present ability to pay, but erred in not setting up
a payment plan for the arrearages along with the regular payment. In a later Fourth District case, the
court held that a trial court erred in finding that an alimony-obligor’s possession of equity in a home
gave him the present ability to pay the purge amount of a contempt order against him. The district court
held that the husband’s ability to immediately sell the home, especially in the distressed housing
market that existed at the time, was speculative and therefore could not support a finding of present
ability to pay. In addition, the district court held that evidence the husband had refused to pay alimony
in the past despite having the ability to do so was only relevant to the issue of willful conduct and might
support a finding of indirect criminal contempt.65 For additional cases on the requirement of present
ability to comply with the purge conditions prior to incarceration for civil contempt, see infra footnotes
93.1, 93.4 and 93.5.
See Tschapek v. Frailing,66 where the Fourth District Court of Appeal overturned the trial court’s order
of arrest and commitment, which was punishment for failure to obey visitation orders, as direct
61
Vazquez v. Vazquez, 827 So. 2d 384 (Fla. 4th DCA 2002) (findings that husband’s failure to pay support was wilful and that he had
ability to pay could not support contempt order without identification of sources from which husband could obtain funds to comply with
underlying support order).
62
Cowan v. Cowan, 635 So. 2d 1069 (Fla. 5th DCA 1994); see also Koeppel v. Holyszko, 643 So. 2d 72 (Fla. 2d DCA 1994); Haymon
v. Haymon, 640 So. 2d 1204 (Fla. 2d DCA 1994).
63
Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992).
64
Brown v. Smith, 705 So. 2d 682 (Fla. 4th DCA. 1998).
65
See Elliott v. Bradshaw, 59 So. 3d 1182, 1187 (Fla. 4th DCA 2011).
66
Tschapek v. Frailing, 699 So. 2d 851 (Fla. 4th DCA 1997).
Page 12 of 37
criminal contempt, where her only act in the presence of the court was an admission by the wife, and
did not provide her due process safeguards as provided by the rule.
See Marino v. Marino,67 where the Fourth District Court of Appeal found the trial court erred when
it incarcerated the mother for her failure to comply with an order to return the child to Florida because
of a foreign state’s order of dependency which precluded contact with the husband.
A civil contempt order must be clear and definite enough to make the contemnor aware of what is
required to purge the contempt.68 For example, a contempt order that requires, as a condition of
avoiding incarceration, that the contemnor not to expose the parties’ children to his or her hostility
toward the other parent, is overly broad. What conduct amounts to hostility toward the other parent is
susceptible to varying interpretations. Therefore, it is questionable what conduct could subject the
contemnor to incarceration.69 However, if a final judgment directs each parent to encourage a loving
relationship between the child and the other parent, and to not obstruct or interfere with the other
parent’s right to companionship with the child, the language of the judgment will support a finding of
contempt if the contemnor’s conduct clearly violates the judgment. For example, one parent’s
alienation of the child from the other parent may provide a basis for enforcement of the judgment by
contempt.70
In Alves v. Alves,71 the Fourth District Court of Appeal overturned the trial court’s order of civil
contempt as the contemnor was not given a specific purge provision with an exact dollar amount and
the order failed to identify which previous orders were violated and allowed the contemnor to purge
prior to going to jail but failed to provide him with a purge provision once he went to jail.
67
Marino v. Marino, 720 So. 2d 1177 (Fla. 4th DCA 1998).
68
69
70
See Levy v. Levy, 861 So. 2d 1211 (Fla. 3d DCA 2003) (custodial mother was properly held in contempt for conduct that clearly
violated final judgment into which parties’ settlement agreement was incorporated); see also Schutz v. Schutz, 581 So. 2d 1290, 1292
(Fla. 1991).
71
Alves v. Barnett Mortg. Co., 688 So. 2d 459 (Fla. 4th DCA 1997).
Page 13 of 37
In Faircloth, the court also considered the question of which party had the burden of proof. In deciding
this point, the court relied on the dissenting opinion of Judge Smith to the Faircloth opinion rendered
by the First District Court of Appeal.72 Judge Smith commented:
The burden is upon the party in default to prove not only that he is unable to comply with the
court’s present order to pay but also that his present inability is due not to his fault or neglect but
rather to circumstances beyond his control which intervened since the final decree ordering him to
pay. Yandell v. Yandell, So. 2d 869 (Fla. 1948); Orr v. Orr, 192 So. 466 (Fla. 1939); Naster v.
Naster, 151 So. 2d 313 (Fla. 2d DCA 1963), cert. discharged, 163 So. 2d 264 (Fla. 1964).73 This
burden of proof is cast upon him not by mere presumption of law, which vanishes upon the
introduction of any evidence to the contrary [ Locke v. Stuart, 113 So. 2d 402 (Fla. 1st DCA1959);
Leonetti v. Boone, 74 So. 2d 551 (Fla. 1954)], but by the court’s decree which created the
obligation to pay. That decree, long since final and therefore invulnerable, is itself a finding that,
as of the moment of its entry, Mr. Faircloth had the ability to make the required payments. Orr v.
Orr, 192 So. 466 (Fla. 1939). As against such a decree, he will not be heard to say that he could
not comply when the decree was entered (emphasis supplied).
‘Upon the affected party’s failure to discharge his burden of proving that he is disabled to pay by
reason of intervening factors not due to his own neglect or fault, the chancellor may find as a fact
that he continues to be able to pay, as was originally decreed, or that any disability was
self-induced. And on that finding the chancellor may order the defaulting party to pay or be
imprisoned for his contemptuous refusal to do so.’74
See also Mallardi v. Jenne,75 where the Fourth District Court of Appeal found there was sufficient
evidence presented to the trial court to establish that the husband entered into a scheme with family
members to transfer assets, which would appear to render himself unable to pay the agreed alimony.
72
Faircloth v. Faircloth, 321 So. 2d 87 (Fla. 1st DCA 1975).
73
See Waskin v. Waskin, 452 So. 2d 999 (Fla. 3d DCA 1984).
74
Faircloth v. Faircloth, 339 So. 2d 650, 652 (Fla. 1976); see also Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986).
75
Mallardi v. Jenne, 721 So. 2d 380, (Fla. 4th DCA 1998).
Page 14 of 37
The Fourth District Court of Appeal further found that he failed to meet the burden at the contempt
hearing that he lacked the ability to pay the purge amount.76
In Pugliese v. Pugliese,77 decided eight months after Faircloth, the court discussed the difference
between civil and criminal contempt:
If the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt
is characterized as civil. This type contempt proceeding is ordinarily instituted by one of the parties
to the litigation who seeks to coerce another party to perform or cease performing an act. The order
of contempt is entered by the court for the private benefit of the offended party. Such orders,
although imposing a jail sentence, classically provide for termination of the contemnor’s sentence
upon purging himself of the contempt. The sentence is usually indefinite and not for a fixed term.
Consequently, it is said that the contemnor ‘carries the key to his cell in his own pocket.’
On the other hand, a criminal contempt proceeding is maintained solely and simply to vindicate the
authority of the court or to punish otherwise for conduct offensive to the public in violation of an
order of the court.
… a determination of whether an order is civil or criminal must be made. If the purpose of the
proceedings was the latter, greater procedural due process safeguards are involved. This principle
is recognized in Fla. R. Crim. P. 3.830 and 3.840. The rule appropriate to the proceedings is
determined by whether the contemptuous conduct is direct or indirect.
Where the act constituting the contempt is committed in the immediate presence of the court, this
contempt is defined as direct. Where an act is committed out of the presence of the court, the
proceeding to punish is for indirect (sometimes called constructive) contempt. A review of the
Rules of Criminal Procedure [3.830 and 3.840] … reflects the greater procedural due process
76
Mallardi v. Jenne, 721 So. 2d 380 (Fla. 4th DCA 1998).
77
De Mauro v. State of Fla., 632 So. 2d 727 (Fla. 3d DCA 1994) (where wife returned the children, even if against her will, imposition
of sentence should not have been imposed, since the purge was complied with) Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977); see
Chamberlain v. Chamberlain, 588 So. 2d 20 (Fla. 1st DCA 1991); Bontrager v. Sessions, 582 So. 2d 766 (Fla. 1st DCA 1991) (where
wife could not be found in civil contempt for intentionally misleading court, absent a showing that the wife failed to comply with the
order); Corry v. Corry, 568 So. 2d 1348 (Fla. 4th DCA 1990) (a classic example of civil contempt where the wife failed to surrender
custody of son in accordance with the custody provision of the final judgment of dissolution).
Page 15 of 37
safeguards imposed when proceedings are for indirect criminal contempt [citations and footnotes
omitted].78
In Pugliese, the trial judge held the respondent in contempt and sentenced him to thirteen days in jail.
The district court affirmed, but the supreme court reversed, holding that if the action were considered
as criminal contempt, Fla. R. Crim. P. 3.840 was not complied with, and if the action were considered
to be civil contempt, an opportunity to purge was not afforded. One who disobeys a civil order must
be permitted to purge himself or herself by complying with the disobeyed order.79 The court
admonished that when trial courts can reasonably anticipate that punishment will be called for,
proceedings should be in conformity with Rule 3.840. If the court anticipates the possibility of fixed
punishment during a hearing, it should continue the case so that compliance with Rule 3.840 can be
accomplished.80 In view of the summary nature of civil contempt, all doubts as to the category that is
involved should be resolved in favor of the respondent.81
In Breeding v. Breeding,82 the wife failed to appear at a hearing at which she was supposed to provide
information regarding the whereabouts of the children. The trial court found her in criminal contempt
at the hearing. The district court reversed, stating that criminal contempt hearings are essentially
miniature criminal trials. Therefore, the accused is entitled to all available constitutional protections.
The proper procedure in this instance would have been to put a warrant out for her arrest after she
failed to appear.
In Chamberlain v. Chamberlain,83 the wife was to be incarcerated for perjuring herself to the court and
the punishment was intended to be for direct criminal contempt. The court held that in such a case,
there must be evidence in the record that the trial court complied with the procedural requirements of
78
Pugliese v. Pugliese, 347 So. 2d 422, 424–25 (Fla. 1977); see also Demetree v. State, 89 So. 2d 498 (Fla. 1956); Ponder v. Ponder,
438 So. 2d 541 (Fla. 1st DCA 1983); In re S.L.T., 180 So. 2d 374 (Fla. 2d DCA 1965).
79
Thurman v. Thurman, 637 So. 2d 64 (Fla. 1st DCA 1994).
80
See Damkohler v. Damkohler, 336 So. 2d 1243 (Fla. 4th DCA 1976); Hagerman v. Hagerman, 751 So. 2d 152 (Fla. 2d DCA. 2000)
(contempt order reversed for failure to recite facts constituting contemptuous conduct); Coody v. Muszynski, 402 So. 2d 81 (Fla. 5th
DCA 1981) (Rule 3.840 not complied with).
81
Deter v. Deter, 353 So. 2d 614 (Fla. 4th DCA 1977).
82
Breeding v. Breeding, 515 So. 2d 374 (Fla. 4th DCA 1987).
83
Chamberlain v. Chamberlain, 588 So. 2d 20 (Fla. 1st DCA 1991).
Page 16 of 37
Fla. R. Crim. P. 3.830. The trial court must ensure that a record of the entire sentencing proceeding is
made and preserved in such a manner that it can be transcribed as needed. Because the contempt
hearing was not recorded, the order was reversed. See Lewis v. Lewis,84 where the First District Court
of Appeal affirmed the trial court’s release of a husband contemnor from incarceration for failure to
pay the wife’s attorney’s fees after three months of incarceration.
The essential requirements of a criminal contempt action are as follows:
Rule 3.830 (Direct):
1. Judgment shall include recital of basis of judgment.
2. Prior to adjudication judge shall inform defendant of accusation and ask for cause as to why he
should not be found in contempt and sentenced therefore.
3. Defendant shall be given opportunity to present evidence of excuse or mitigation.
4. Judgment should be signed by judge.
5. Sentence pronounced in open court.
Rule 3.840 (Indirect):
1. Judge issues the rule to show cause on own motion or upon sworn affidavit.
2. Defendant given reasonable time to respond.
3. Attorney may be appointed to prosecute case.
4. If charges include disrespect against or criticism of judge he should disqualify himself.
5. At conclusion of hearing judge shall sign judgment.
6. Sentence: same as 3.830 or any other criminal case.

84
Lewis v. Lewis, 699 So. 2d 808 (Fla 4th DCA 1997).
Page 17 of 37
The next cases of significance to deal with the civil and criminal contempt issues are Lamm v.
Chapman85 and Andrews v. Walton.86 In these two cases the petitioner seeking enforcement was the
Dept. of Health and Rehabilitative Services seeking reimbursement of state public assistance funds.
In Lamm the district court held that the ex-husband could not be held in contempt because it would
amount to imprisoning him for money owed to the State in violation of the guarantee against
imprisonment for debt in the Florida Constitution. The Florida Supreme Court rejected this reasoning
and held:
We hold that the acceptance of public assistance for the support of a dependent child vests in the
department the authority to proceed with all remedies available to the child’s custodian. The state
must have the power to ensure that the responsible parent, to the extent that he or she has the ability
to pay, reimburse the state for public assistance moneys expended for the benefit of a dependent
child and provide continuing reasonable child support.87
In Andrews v. Walton, the Florida Supreme Court addressed the issue of the payee spouse’s right to
counsel in civil contempt proceedings for failure to pay child support. The ex-husband argued that
because he was faced with incarceration and thus a fundamental deprivation of his liberty that his right
to Fourteenth Amendment due process was violated when the trial court failed to advise him of his right
to counsel and to provide him counsel in the proceedings.
The Supreme Court in Andrews cited Lassiter v. Dept. of Social Services,88 wherein the U.S. Supreme
Court refused to adopt a per se rule that due process requires appointed counsel for indigents in
parental termination cases and reemphasized that due process requires only that judicial processes be
fundamentally fair. The Florida court then held:
An action for contempt for failure to pay child support is classically a civil contempt action. The
due process doctrine of ‘fundamental fairness’ was incorporated into the criteria which serve as a
85
413 So. 2d 749 (Fla. 1982).
86
428 So. 2d 663 (Fla. 1983).
87
413 So. 2d at 753.
88
452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).
Page 18 of 37
prerequisite to imprisonment for non-payment of child support in Faircloth v. Faircloth, 339 So.2d
650 (Fla.1976). In that case, we held that, to satisfy due process, a person could not be adjudicated
guilty of failing to pay alimony or child support and sentenced to imprisonment conditional upon
payment unless the trial court finds that the person (1) has the ability to make the payments; and
(2) willfully refuses to pay. Consequently, if the requirements of Faircloth are met, an indigent
parent cannot be imprisoned for failure to pay child support because, upon a showing of indigency,
the trial court cannot make the essential finding that the indigent parent has the ability to pay. Since
the parent who is unable to acquire the funds necessary to purge himself will not be subject to
imprisonment in non-support civil contempt proceedings, ‘fundamental fairness’ is satisfied and
due process does not give rise to the right to appointed counsel. See Scott v. Illinois, 440 U.S. 367,
99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) (even under the sixth amendment protections in criminal
cases, actual imprisonment is the line defining the constitutional right to appointment of counsel).
Therefore, we find that there are no circumstances in which a parent is entitled to court-appointed
counsel in a civil contempt proceeding for failure to pay child support because if the parent has the
ability to pay, there is no indigency, and if the parent is indigent, there is no threat of
imprisonment.89
Since the Florida Supreme Court decided Andrews, in which it cited Lassiter, the United States
Supreme Court has held that in a civil contempt proceeding brought against an indigent respondent for
failure to pay child support, the respondent does not automatically have a right to appointed counsel,
even though he or she may be incarcerated as a result of the proceeding.90 The Court held that due
process does not require appointed counsel if (1) the support is owed to the other parent rather than
to the state, (2) the opposing parent is not represented by counsel, and (3) there are adequate substitute
procedural safeguards. Such safeguards include the following: (1) the provision of notice that the
respondent’s ability to pay will be a critical issue at the contempt hearing, (2) the use of a form to elicit
financial information from the respondent, (3) the provision of an opportunity for the respondent to
answer questions concerning financial information at the hearing, and (4) the court’s statement of a
89
428 So. 2d at 666.
90
See Turner v. Rogers, ___ U.S. ___, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
Page 19 of 37
finding that the respondent has the ability to pay. The Supreme Court expressly left open the possibility
that due process may require appointment of counsel for an indigent respondent if the underlying child
support payment is owed to the state, or if the case is unusually complex and the respondent cannot
be fairly represented without a trained advocate.91
The Third District faced the appointment of counsel issue in light of Andrews in Robbins v. Robbins.92
This case involved a procedure in Dade County wherein one judge heard over 250 motions for
contempt, all prosecuted by the state attorney, in four days. Each hearing lasted only a few minutes.
No sworn testimony was presented, there was no opportunity for cross-examination, the hearings were
not transcribed, no documents were admitted into evidence and the defaulting spouses were not
advised of their right to obtain counsel. The defaulting spouses were each found in contempt in a form
order which recited that he had the ability to pay but refused to do so. Between 100 and 135 of these
persons were jailed and sentenced to terms of imprisonment.
The Third District first found that the hearings did not comport with due process of law. The court did
not find that the defaulting spouse’s were entitled to appointment of counsel in the civil contempt
proceedings and relied upon Andrews. The court then addressed the fact that each of the form orders
recited that the defaulting spouse had the ability and willfully refused to do so. The court concluded
that the records did not support these findings. The court then stated:
The contempts were brought as civil contempts to obtain compliance with existing support orders.
For that reason, the respective orders contained purge amounts, enabling respondents to avoid
punishment. A lack of ability to pay, however, turned them into criminal contempts. See Andrews;
Pugliese v. Pugliese, 347 So. 2d 422 (Fla. 1977). If the contempts were in fact criminal, the
likelihood of incarceration would have required appointment of counsel, Argersinger v. Hamlin,
407 U.S. 25, 92 S.Ct. 2006, 32 L. Ed.2d 530 (1972), and the protections of Florida Rule of Criminal
Procedure 3.840.93
91
See Turner v. Rogers, ___ U.S. ___, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
92
429 So. 2d 424 (Fla. 3d DCA 1983).
93
Id. at 430–31 .
Page 20 of 37
In Ponder v. Ponder,94 the First District rendered an opinion wherein this court concluded that Andrews
and Robbins had altered the Faircloth test for civil contempt. The court commented:
We believe that Andrews opinion necessarily limits the effect of the language in Faircloth to the
extent that, in every case, present ability to pay the purge amount is a necessary predicate to
committing a civil contemnor to jail for failing to comply with the court’s order. This interpretation
of the Faircloth rule is in harmony with the previous Supreme Court opinions in Demetree, supra
, and Pugliese, supra , and is also in harmony with the general rule in other states. 17 AM. Jur. 2d,
Contempt, § 4. As we read Andrews and the Third District’s recent opinion in Robbins v. Robbins,
429 So. 2d 424 (Fla. 3d DCA 1983), the two-part test in Faircloth is applied only when the trial
court makes its initial determination that contempt has occurred. In other words, while the language
in Faircloth suggests that a person can be found in contempt if he has intentionally disposed of his
financial resources to avoid compliance with the order, even though he does not have a present
ability to comply with the court order, according to Demetree, Pugliese, Andrews, and Robbins,
such person cannot be committed to jail unless there is also an affirmative finding based upon
evidence in the record that at the time of incarceration the contemnor has the ability to make
payment of the purge amount. Anything less removes the “key to his cell” from the contemnor’s
pocket, operates to punish rather than coerce prospective compliance with the court’s order, and
transforms the proceeding from one for civil contempt to one for criminal contempt, thereby
requiring full compliance with Rule 3.840, Florida Rules of Criminal Procedure, and other due
process requirements applicable to trial and punishment for criminal contempts. Pugliese v.
Pugliese, supra ; Robbins v. Robbins, supra.95
In Bowen v. Bowen,96 the Second District Court of Appeal considered whether a parent may be
imprisoned for contempt on a finding that he or she wrongfully divested himself or herself of the ability
94
438 So. 2d 541 (Fla. 1st DCA 1983), review denied, 447 So. 2d 887 (Fla. 1984),
95
Ponder v. Ponder, 438 So. 2d 541, 543 (Fla. 1st DCA. 1983); see also Shoemaker v. Shoemaker, 567 So. 2d 975 (Fla. 1st DCA.
1990) (husband could not be incarcerated absent evidence of present ability to pay); Jerome v. Jerome, 568 So. 2d 540 (Fla. 4th DCA.
1990); Griffin v. Griffin, 461 So. 2d 251 (Fla. 1st DCA. 1984).
96
Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA. 1984); see also LeNeve v. Navarro, 565 So. 2d 836 (Fla. 4th DCA. 1990) (where
petitioner fully failed to devote himself to employment to pay support, civil contempt not available without ability to purge); Russell v.
Russell, 559 So. 2d 675 (Fla. 3d DCA. 1990) (where contempt move without assets, remedy for civil contempt is limited to
Page 21 of 37
to make the court-ordered child support payments97 and, if so, whether the parent is entitled to
appointed counsel. The court held:
Petitioner’s jail sentence for civil contempt was improper because he did not have the present
ability to pay. Petitioner here faces incarceration without carrying “the key to his cell in his own
pocket” by having the ability to purge the contempt by paying. A contemnor’s ability to purge
himself is, of course, the well understood justification for imprisonment in civil contempt
proceedings where the defendant does not have the due process protections, such as right to
counsel, afforded in criminal contempt proceedings.
In view of petitioner’s present inability to pay, the court’s sentence was equivalent to punishment
for criminal contempt. At that point, the proceeding no longer had as its purpose “to coerce action
or non-action by a party.” The contempt proceeding then took on criminal characteristics in that the
sanctions became punitive. [citations omitted]98
See Baker v. Green,99 where the First District Court of Appeal overruled the trial court’s order of
contempt that imposed a fine to punish disobedience of previous court orders and to deter similar
conduct in the future, which order of contempt did not comply with the procedural requirements of
Florida Rule of Criminal Procedure 3.840 by failing to give contemnor the opportunity to purge
herself.
Once the proceeding becomes criminal, then the parent is entitled to representation. The court then
stated:
We do not suggest that the court could not punish petitioner for failing to comply with previous
orders for payment at a time when he had the ability to pay. An indigent parent should be subject
to jail if he has disdained the authority of the court by divesting himself of his ability to comply
with a child support order. However, this can only be accomplished by first providing petitioner
nonincarceration options); Moskowitz v. Moskowitz, 549 So. 2d 781 (Fla. 4th DCA. 1989) (in civil contempt proceeding, alternate
finding that wife divested herself of ability to pay to avoid compliance was inappropriate).
97
This is the second arm of the Faircloth test. Andrews considered the inability of the defaulting spouse to pay.
98
Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA. 1984).
99
Baker v. Green, 732 So. 2d 6 (Fla. 1st DCA. 1999),
Page 22 of 37
with the right to appointed counsel. Andrews, itself, recognizes that defendants in criminal
contempt proceedings are entitled to counsel. 428 So. 2d at 665. See also Argersinger v. Hamlin,
407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).100
In Smith v. Miller,101 another divestment case, the rationale of Bowen is extended. The First District
held that representation by counsel was not enough in a divestment/indirect criminal contempt case.
The court held that full compliance with Fla. R. Crim. P. 3.840 is a necessary prerequisite to imposition
of a sentence. The court stated that the defaulting party was entitled to “an order stating the essential
facts constituting the criminal contempt charged and the right to compulsory attendance of witnesses,
as well as other important safeguards.”102
The supreme court agreed to review Bowen finding that it conflicted with Waskin v. Waskin.103 In so
doing the court attempted to resolve many problematic issues which had developed in the application
of Faircloth and its progeny. The court upheld the district court by concluding that Mr. Bowen was
improperly incarcerated for civil contempt.
The court initially reasoned:
As this court has previously stated, the purpose of a civil contempt proceeding is to obtain
compliance on the part of a person subject to an order of the court. Because incarceration is utilized
solely to obtain compliance, it must be used only when the contemnor has the ability to comply.
This ability to comply is the contemnor’s “key to his cell.” The purpose of criminal contempt, on
the other hand, is to punish. Criminal contempt proceedings are utilized to vindicate the authority
of the court or to punish for an intentional violation of an order of the court.
Because this type of proceeding is punitive in nature, potential criminal contemnor are entitled to
the same constitutional due process protections afforded criminal defendants in more typical
criminal proceedings. We continue to adhere to the view that incarceration for civil contempt
100
Bowen v. Bowen, 454 So. 2d 565 (Fla. 2d DCA. 1984).
101
Smith v. Miller, 451 So. 2d 945 (Fla. 1st DCA. 1984).
102
Smith v. Miller, 451 So. 2d 945, 946 (Fla. 1st DCA. 1984).
103
Waskin v. Waskin, 452 So. 2d 999 (Fla. 3d DCA. 1984).
Page 23 of 37
cannot be imposed absent a finding by the trial court that the contemnor has the present ability to
purge himself or contempt. Without the present ability to pay from some available asset, the
contemnor holds no key to the jailhouse door. [Citations omitted]104
The court went on to explain the Faircloth holding:
To the extent these statements [quoting portions of the Faircloth opinion] indicate that incarceration
can be imposed upon a civil contemnor who lacks the ability to pay the purge amount, we recede
from this language. Although we did not directly address in that opinion the purge requirement of
a civil contempt proceeding, it is important to note that the Faircloth result establishes that a
present ability to purge is a prerequisite to incarceration for civil contempt… . The disposition in
that case indicates clearly that incarceration cannot be imposed upon a civil contemnor for willfully
failing to comply with a court order unless the court first determines that the contemnor has the
present ability to purge himself of contempt.105
The court then offered an explanation of the correct procedure for establishing civil contempt in family
support matters:
In these cases, the initial order or judgment directing a party to pay support or alimony is predicated
on an affirmative finding that the party has the ability to pay. This initial judicial determination
creates, in subsequent proceedings, a presumption that there is an ability to pay, and the obligor has
104
Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); Fennell v. Felton, 655 So. 2d 1316 (Fla. 3d DCA 1995) (the purpose of habeas
corpus is to determine whether one is legally restrained and not for appellate review regarding reversal and remand for determination
of possible contempt proceedings); Perrett v. Perrett, 621 So. 2d 571 (Fla. 1st 447 DCA 1993) (affidavit by wife insufficient for finding
of contempt and incarceration of husband); see Campbell v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990) (civil contempt inappropriate
where party willfully reduced his ability to pay absent finding of present ability to comply); Scapin v. Scapin, 553 So. 2d 319 (Fla. 1st
DCA 1989) (finding of ability to pay based on imputed income was error); Kossmann v. Kossmann, 550 So. 2d 168 (Fla. 2d DCA 1989)
(incarceration cannot be imposed in civil contempt absent finding of present ability to comply with purge requirements); Palmer v.
Palmer, 530 So. 2d 508 (Fla. 3d DCA 1988) (contempt order which did not contain finding of present ability to pay or appropriate purge
provision was fatally defective); Stebbins v. Stebbins, 754 So. 2d 903(Fla. 1st DCA 2000) (no authority for a per se rule which would
hold that a supporting spouse always becomes voluntarily underemployed or unemployed when he or she refuses to accept an offer of
comparable employment in another area).
105
Bowen v. Bowen, 471 So. 2d 1274, 1277–78 (Fla. 1985); Zdravkovic v. Zdravkovic, 684 So. 2d 822 (Fla. 4th DCA 1996) (master’s
findings are binding on the trial court unless there is clear evidence that the findings are unsupported and are erroneous).
Page 24 of 37
the burden to show that he lacks the ability to purge himself from the contempt.106 In a civil
contempt proceeding for failure to pay child support or alimony, the movant must show that a prior
court order directed the party to pay the support or alimony, and that the party in default has failed
to make the ordered payments. The burden of producing evidence then shifts to the defaulting
party, who must dispel the presumption of ability to pay by demonstrating that, due to
circumstances beyond his control which intervened since the time the order directing him to pay
was entered, he no longer has the ability to meet his support obligations. The court must then
evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting
party has willfully violated the court order. Once the court finds that a civil contempt has occurred,
it must determine what alternatives are appropriate to obtain compliance with the court order. If
incarceration is deemed appropriate, the court must make a separate, affirmative finding that the
contemnor possesses the present ability to comply with the purge conditions set forth in the
contempt order. In determining whether the contemnor possesses the ability to pay the purge
amount, the trial court is not limited to the amount of cash immediately available to the contemnor;
rather, the court may look to all assets from which the amount might be obtained.107
The factual basis on which the court finds that the contemnor possesses the present ability to pay the
purge amount must also be set forth in the court’s order. To satisfy this requirement, a trial court must
identify the source or sources of payment from which the contemnor may obtain funds to pay the purge
amount.108
For example, a former husband was properly found to have the present ability to pay a purge amount
because he could have asked his wealthy father for the money, but refused to do so because of his
106
Fla. Stat. § 61.14; Compagnoni v. Compagnoni, 619 So. 2d 450 (Fla. 3d DCA 1993) (error to incarcerate without separate
affirmative finding that the husband had the ability to purge himself).
107
Bowen v. Bowen, 471 So. 2d 1274, 1278–79 (Fla. 1985); see also Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992) (finding
that husband had ability to pay “unless he willfully divulged himself of means to do so” not an affirmative finding of present ability to
comply); Phillips v. Phillips, 588 So. 2d 9 (Fla. 2d DCA 1991) (unrebutted, substantial evidence is sufficient to overcome presumption
of ability to pay); Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA 1991); Peterson v. Peterson, 553 So. 2d 733 (Fla. 2d DCA 1989)
(affidavit which stated ex-husband is believed to continue to have ability to pay was insufficient, evidence for contempt); Register v. Pita,
546 So. 2d 1162 (Fla. 1st DCA 1989) (citing Bowen) Walsh, The Metamorphosis of Faircloth, 60 Fla. B.J. 35 (Jan. 1986).
108
Fla. Fam. L. R. P. 12.615(e); Wiesenthal v. Wiesenthal, 154 So. 3d 484, 486 (Fla. 4th DCA 2015).
Page 25 of 37
hatred of his former wife.108.1 In another case, an obligor-husband was improperly ordered to be
incarcerated unless he paid a purge amount of $20,060.96, because the evidence that he (1) possessed
a minimum of $20,000 in business inventory, and (2) had paid $6,500 to his attorney since entry of the
support order as to which he was found in contempt, was insufficient to show a present ability to pay
the purge.108.2 With regard to the business inventory, the only evidence before the trial court showed
that the business inventory was subject to substantial liens, and there was no evidence suggesting there
was a ready market for the inventory or that its sale would generate $20,000. As for the $6,500 the
husband had paid to his attorney, the evidence established that the payment was derived from a loan,
and there was no testimony indicating that additional funds were available.108.3 See Jones v. Jones,109
where the Fifth District Court of Appeal affirmed the trial court where the husband’s attorney read
verbatim the husband’s financial affidavit, however as it was never introduced into evidence, the
husband never met his burden to overcome his ability to pay and purge. In Pompey v. Cochran,110 the
Fourth District Court of Appeal granted the former husband petitioner’s writ of habeas corpus and in
doing so, certified the following questions:
WHERE A DEFENDANT FAILS TO APPEAR AT A HEARING ON A MOTION FOR CIVIL
CONTEMPT, AND AS A RESULT OF THE NON-APPEARANCE THE TRIAL COURT
ENTERS AN ORDER OF INCARCERATION WITH A PURGE AMOUNT ARRIVED AT
WITHOUT ACTUAL EVIDENCE OF THE ABILITY TO PAY, IS HABEAS CORPUS
AVAILABLE TO THE JAILED CONTEMNOR?
IN AN ORDER TO SUPPORT AN ORDER OF INCARCERATION FOR CIVIL CONTEMPT,
DOES THE BOWEN PRESUMPTION OF ABILITY TO PAY, WHEN NOT REBUTTED BY A

CIVIL CONTEMNOR WHO FAILS TO APPEAR AT A NOTICED HEARING FOR CONTEMPT,
108.1
See Sibley v. Sibley, 833 So. 2d 847 (Fla. 3d DCA 2002), reh’g denied, 835 So. 2d 1140 (Fla. 3d DCA 2002) (husband’s father
had given husband substantial sums of money to support husband’s current family and to pay legal fees incurred in challenging support
at issue in instant case). Jones v. Jones, 671 So. 2d 852 (Fla. 5th DCA 1996).
108.2
See Wiesenthal v. Wiesenthal, 154 So. 3d 484, 487 (Fla. 4th DCA 2015).
108.3
See Wiesenthal v. Wiesenthal, 154 So. 3d 484, 487 (Fla. 4th DCA 2015).
109
Jones v. Jones, 671 So. 2d 852 (Fla. 5th 447 1996).
110
Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997); Mroz v. State, Dep’t of Rev. o/b/o Mroz 23 Fla. L. Weekly D1617 (Fla.
4th DCA 1998) (the defendant was not entitled to counsel, as it was a civil hearing).
Page 26 of 37
SATISFY THE SECOND BOWEN REQUIREMENT OF A SEPARATE AFFIRMATIVE FINDING

OF ABILITY TO PAY THE PURGE AMOUNT SPECIFIED BY THE TRIAL COURT?
The fact that a person has willfully divested himself of assets or has willfully reduced his income
through acceptance of a lower paying job does not support a finding of present ability to pay the purge
amount.111 For example, a former attorney accepted a lower paying position as a college teacher and
was incarcerated for civil contempt for failure to meet child support obligations. Finding the
incarceration illegal, the Fifth District ruled that the theoretical ability to earn considerably more as an
attorney than as a teacher was not the equivalent of a presently available asset or income.112
In addition, findings as to person’s extravagant or wasteful spending habits may have some bearing on
the person’s ability to pay, but they do not constitute an affirmative finding of the present ability to pay
the purge amount.113
In summary, the Florida Family Law Rules of Procedure114 and case law establishes that the following
must occur for incarceration to be imposed as a sanction for civil contempt:
(1) the contemnor must be given notice and opportunity to be heard to show his default was not
willful;115
(2) the court must make an express finding that contemnor has the present ability to pay and
willfully refuses to do so;116 and
111
Bowen, Gibson v. Bennett, 561 So. 2d 565 (Fla. 1990); Cummins v. Cummins, 615 So. 2d 173 (Fla. 5th DCA 1993); Campbell
v. Campbell, 571 So. 2d 555 (Fla. 4th DCA 1990).
112
Cummins v. Cummins, 615 So. 2d 173 (Fla. 5th DCA 1993).
113
Dragland v. Dragland, 613 So. 2d 561 (Fla. 2d DCA 1993) (finding that husband spent $340 per month on alcohol and cigarettes
bears on husband’s ability to pay, but does not constitute affirmative finding of present ability to pay).
114
See Fla. Fam. L. R. P. 12.615(e).
115
Douglas v. Douglas, 485 So. 2d 18 (Fla. 3d DCA 1986); See Allman v. Johnson, 488 So. 2d 884 (Fla. 5th DCA 1986).
116
Perrett v. Perrett, 621 So. 2d 571 (Fla. 1st DCA 1993) (order for incarceration upon receipt of verified statement of nonpayment
of child support does not meet requirement of express finding that contemnor has present ability to pay); Compagnoni v. Compagnoni,
619 So. 2d 450 (Fla. 3d DCA 1993) (order omitted findings that contemptor had the willfully violated child support order and had present
ability to comply with purge conditions); Dragland v. Dragland, 613 So. 2d 561 (Fla. 2d DCA 1993) (finding husband had money for
alcohol and tobacco does not constitute finding that he had ability to purge self from incarceration); Cummins v. Cummins, 615 So. 2d
173 (Fla. 5th DCA 1993) (acceptance of lower paying position and theoretical ability to earn more in former position not the equivalent
of a presently available asset); Miller v. Miller, 587 So. 2d 601 (Fla. 5th DCA 1991) (order was defective where it did not contain separate
affirmative finding of present ability to comply with purge conditions); Cokonougher v. Cokonougher, 543 So. 2d 460 (Fla. 2d DCA
Page 27 of 37
(3) the court order must contain a purge provision by which the contemnor may be automatically
relieved of the finding of contempt and released from confinement upon compliance with the
order.117
The court order must be clear and definite so as to put the contemnor on notice of what is required for
compliance. Otherwise, a party cannot be held in contempt for violation of the order.118 The order must
also contain a reasonable period of time within which the contemnor may purge himself of
contempt.119
If the court orders (1) a reasonable time for compliance exceeding 48 hours, and (2) incarceration if
the contemnor fails to comply within the time allowed, the contemnor may be immediately
incarcerated on the filing of an affidavit of noncompliance by the obligee.120 However, following a
contemnor’s imprisonment under such a deferred incarceration provision, the court must determine
within 48 hours of the contemnor’s incarceration whether he or she continues to have the present
ability to pay the purge amount.121 If the court determines that the contemnor does continue to have
the present ability to pay, the court must issue an order containing an affirmative finding that present
ability to pay the purge still exists.122
Effective July 1, 1992, Fla. Stat. § 61.14 was amended to provide the following:
1989) (where failure to make finding of present ability to pay violated due process); Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA
1989) (order in civil contempt was set aside where court failed to make finding of ability to pay purge amount); Tuten v. Tuten, 495 So.
2d 270 (Fla. 2d DCA 1986); Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986); Verdolin v. Verdolin, 490 So. 2d 1072 (Fla. 4th
DCA 1986); Weeks v. Weeks, 490 So. 2d 1059 (Fla. 2d DCA 1986); Meadows v. Bacon, 489 So. 2d 850 (Fla. 5th DCA 1986); Douglas
v. Douglas, 485 So. 2d 18 (Fla. 3d DCA 1986).
117
Palmer v. Palmer, 530 So. 2d 508 (Fla. 3d DCA 1988) (where contempt order did not contain finding of present ability to pay or
purge provision, it was fatally defective); Knowles v. Knowles, 522 So. 2d 477 (Fla. 5th DCA 1988); Meadows v. Bacon, 489 So. 2d
850 (Fla. 5th DCA 1986); Allman v. Johnson, 488 So. 2d 884 (Fla. 5th DCA 1986); Douglas v. Douglas, 485 So. 2d 18 (Fla. 3d DCA
1986).
118
Thompson v. Plowmaker, 681 So. 2d 727 (Fla. 2d DCA 1996) (where the final judgment ordered reimbursement of mileage without
specific amount, contempt could not stand); Warnhoff v. Warnhoff, 474 So. 2d 1224 (Fla. 4th DCA 1985), citing Lawrence v. Lawrence,
384 So. 2d 279 (Fla. 4th DCA 1980); see Rosen v. Rosen, 579 So. 2d 846 (Fla. 4th DCA 1991) (order defective where it did not inform
of exact dollar amount necessary to purge contempt).
119
Compagnoni v. Compagnoni, 619 So. 2d 450 (Fla. 3d DCA 1993).
120
Fla. Fam. L. R. P. 12.615(e).
121
Fla. Fam. L. R. P. 12.615(e).
122
Reynolds v. State, 2001 Fla. App. LEXIS 7849 (June 6, 2001); see Fla. Fam. L. R. P. 12.615(e).
Page 28 of 37
(5) When a court of competent jurisdiction enters an order for the payment of alimony or child
support or both, the court shall make a finding of the obligor’s imputed or actual present ability to
comply with the order. If the obligor subsequently fails to pay alimony or support and a contempt
hearing is held, the original order of the court creates a presumption that the obligor has the present
ability to pay the alimony or support and to purge himself from the contempt. At the contempt
hearing, the obligor shall have the burden of proof to show that he lacks the ability to purge himself
from the contempt. This presumption is adopted as a presumption under s. 90.302(2) to implement
the public policy of this state that children shall be maintained from the resources of their parents
and as provided for in s. 409.2551, and that spouses be maintained as provided for in s. 61.08. The
court shall state in its order the reasons for granting or denying the contempt.
See also Remington v. Remington,123 where the Fourth District Court of Appeal found that it was error
to fail to compute prejudgment interest on arrearages of child support payments.
Whether a valid foreign judgment that enforces a property settlement through a finding of contempt
and an order of incarceration may be enforced in Florida is an open question with regard to the
incarceration component of the judgment.123.1
[2] PROCEDURES: SERVICE; NOTICE
A contempt action is a continuation of the original action,124 so personal service is not required as long
as the court has at some point obtained personal jurisdiction over the respondent.125 If defendant offers
evidence in defense of the complaint, he cannot then contend that the court has no personal jurisdiction
over him.126 Notice, including registered mail,127 substituted service128 or publication,129 is required
123
Remington v. Remington, 705 So. 2d 920 (Fla. 4th DCA 1997).
123.1
See Weiss v. Weiss, 100 So. 3d 1220, 1224 (Fla. 2d DCA 2012); see also § 14.05 introductory material, above (discussion of
Weiss).
124
Fla. R. Civ. P. 1.110(h); Arrington v. Brown, 116 So. 2d 461 (Fla. 3d DCA 1959); Marshall v. Bacon, 97 So. 2d 252 (Fla. 1957).
125
Wood v. Wood, 276 So. 2d 527 (Fla. 3d DCA1973); Prensky v. Prensky, 146 So. 2d 604 (Fla. 3d DCA 1962); Marshall v. Bacon,
97 So. 2d 252 (Fla. 1957).
126
Sikes v. Sikes, 242 So. 2d 494 (Fla. 3d DCA 1970).
127
Spencer v. Spencer, 311 So. 2d 822 (Fla. 3d DCA 1975); Davis v. Davis, 159 So. 2d 879 (Fla. 3d DCA 1964); Arrington v. Brown,
116 So. 2d 461 (Fla. 3d DCA 1959).
Page 29 of 37
(and sufficient) as long as it is reasonable under the circumstances and gives respondent sufficient time
to defend.130 Absent extraordinary circumstances, proper notice should include written notice served
within a reasonable time before the specified hearing.131 The written notice must specify the time and
place of the hearing, and must contain the following language:132
FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF
BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD
IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.
In addition, a notice of contempt hearing must state whether electronic recording or a court reporter
is provided by the court and, if neither is provided, that the party must provide a court reporter if he
or she desires one.133
The United States Supreme Court has held that in a civil contempt proceeding brought against an
indigent respondent for failure to pay child support, the respondent does not automatically have a right
to appointed counsel, even though he or she may be incarcerated as a result of the proceeding.134 The
Court held that due process does not require appointed counsel if (1) the support is owed to the other
parent rather than to the state, (2) the opposing parent is not represented by counsel, and (3) there are
adequate substitute procedural safeguards. Such safeguards include the following: (1) the provision of
notice that the respondent’s ability to pay will be a critical issue at the contempt hearing, (2) the use
of a form to elicit financial information from the respondent, (3) the provision of an opportunity for
the respondent to answer questions concerning financial information at the hearing, and (4) the court’s
statement of a finding that the respondent has the ability to pay. The Supreme Court expressly left open
128
State, Dep’t of HRS v. Pierre, 625 So. 2d 987 (Fla. 3d DCA 1993) (service of process by mail and substituted service at former
husband’s place of residence was sufficient to overturn a denial of issuance of a writ of bodily attachment for failure to pay child support).
129
Burkhart v. Circuit Ct. of 11th Jud. Cir., 1 So. 2d 872 (Fla. 1941).
130
Marshall v. Bacon, 97 So. 2d 252 (Fla. 1957).
131
Loudermilk v. Loudermilk, 693 So. 2d 666 (Fla. 2d DCA 1997); Hayman v. Hayman, 522 So. 2d 531 (Fla. 2d DCA 1988); Simmons
v. Simmons, 698 So. 2d 947 (Fla. 4th DCA 1997).
132
Fla. Fam. L. R. P. 12.615(b).
133
See Fla. Fam. L. R. P. 12.615(b).
134
See Turner v. Rogers, 564 U.S. ___, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
Page 30 of 37
the possibility that due process may require appointment of counsel for an indigent respondent if the
underlying child support payment is owed to the state, or if the case is unusually complex and the
respondent cannot be fairly represented without a trained advocate.135
Any party in an enforcement or contempt proceeding may serve on any other party a written request
to serve a financial affidavit if the other party’s financial circumstances are relevant in the
proceeding.136 The party to whom the request is made must serve, but not file,137 the requested
financial affidavit, and must file a notice of compliance within 10 days after service of the written
request. The court may allow a shorter or longer time. The financial affidavit must be in substantial
conformity with Florida Family Law Rules of Procedure Form 12.902(b) (Short Form), all sections of
which shall be completed.138
A purge requirement relative to payment of future payments not due at the time of the order is invalid
because it deprives respondent of the opportunity to justify future nonpayment.139 The better practice
would be to require filing of proof of performance prior to the date the order of commitment is to be
issued.140 In Bellville v. Bellville,141 the Fourth District Court of Appeal ruled that the trial court erred
in ordering the purge payment of $5,000 within 90 days, which would subject the husband to
incarceration without giving him an opportunity prior to incarceration to show his inability to pay the
purge amount.
A contemnor may be jailed for failure to purge a prior contempt order if the prior contempt order
contains a deferred-incarceration provision. However, if the deferral of incarceration was for more than
48 hours, the court must determine within 48 hours of the contemnor’s incarceration whether he or she
135
See Turner v. Rogers, 564 U.S. ___, 131 S. Ct. 2507, 180 L. Ed. 2d 452 (2011).
136
Fla. Fam. L. R. P. 12.287.
137
See In re Implementation of Comm. on Privacy & Court Records Recommendations, 2011 Fla. LEXIS 1532 (June 30, 2011) (as
corrected July 8, 2011).
138
Fla. Fam. L. R. P. 12.287.
139
Strauser v. Strauser, 303 So. 2d 663 (Fla. 4th DCA 1974), overruled on other grounds, Waltham A. Condominium Ass’n v. Village
Management, Inc., 330 So. 2d 227 (Fla. 4th DCA 1976).
140
Roberts v. Roberts, 328 So. 2d 461 (Fla. 4th DCA. 1976).
141
Bellville v. Bellville, 758 So. 2d 1255 (Fla. 4th DCA 2000).
Page 31 of 37
continues to have the present ability to pay the purge amount. If the court determines that the
contemnor does continue to have the ability to pay, the court must issue an order containing an
affirmative finding that continued ability to pay the purge exists.142 If a writ of bodily attachment is
issued to bring a contemnor before the court for failure to satisfy the purge provision of a previous
contempt order, and evidence at the hearing shows that the sources of payment that were available at
the time the prior contempt order was entered no longer exist, the trial court may not properly order
incarceration of the contemnor unless there is evidence establishing the existence of other assets from
which he or she may obtain funds to pay the purge amount.143
Because a person’s liberty hangs in the balance on issuance of a writ of bodily attachment, a trial court
does not abuse its discretion if it conducts a hearing regarding the propriety of the writ just prior to its
issuance. Such a hearing is consistent with fundamental fairness requirements of the Due Process
Clause of the United States Constitution and is therefore proper.144
Where the husband filed exceptions to the master’s findings for failure to pay alimony, it was error for
the court not to vacate an order of commitment when it entered its subsequent order setting his
exceptions for a hearing.145
Refer to Volume 4 of this manual for the Florida Family Law Rules of Procedure Forms used for a
Motion for Civil Contempt/Enforcement (Form 12.960) and Notice of Hearing on Motion for
Contempt/Enforcement (Form 12.961). The following pages provide samples of attorney-drafted
forms.
142
Fla. Fam. L. R. P. 12.615(e); Reynolds v. State,,2001 Fla. App. LEXIS 7849 ( June 6, 2001).
143
Department of Revenue v. Meade, 827 So. 2d 1093 (Fla. 2d DCA. 2002).
144
Department of Revenue v. Meade, 827 So. 2d 1093 (Fla. 2d DCA 2002) (trial court did not abuse its discretion in requiring hearing
to ascertain propriety of issuing writ of bodily attachment against delinquent child support obligor who failed to appear at noticed civil
contempt hearing, and who did not subsequently satisfy purge provision of contempt order).
145
Scott v. Scott, 667 So. 2d 975 (Fla. 4th DCA 1996).
Page 32 of 37
[3] FORM: MOTION FOR CONTEMPT AND NOTICE OF HEARING
MOTION FOR CONTEMPT AND NOTICE OF HEARING
IN RE: THE MARRIAGE OF

____________________, IN THE CIRCUIT COURT OF THE
Petitioner/Wife SIXTH JUDICIAL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
and
____________________,
CASE NO.
Respondent/Husband.
PETITIONER’S MOTION FOR
CONTEMPT AND NOTICE OF
HEARING
YOU ARE NOTIFIED that Petitioner, ____________________, will apply to the Honorable
____________________, Circuit Judge, on ____________________ (date and time) in his Chambers
at the Pasco County Court-house, Room _____________ for an Order adjudging you in Contempt of
Court for violating the Order entered in this Court on ________________________________________
(date), compelling the production of documents requested by the Petitioner on
________________________________________ date, in the Request to Produce served upon you by
the Sheriff of Gilchrist County on ________________________________________ (date), and the
Order entered in this Court on ________________________________________ (date) by failing to
pay child support payments to the central government depository of Pasco County on
________________________________________ (dates of non-payment). Petitioner will apply on the
date of this hearing for an award of reasonable attorney’s fees and for costs.
FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF
BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD
IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.
No electronic recording or court reporter will be provided by the court at the hearing. If you desire to
have a court reporter attend and record the hearing, you must make arrangements with a court reporter
to do so. You will be responsible for the cost of the reporter.
Page 33 of 37
I HEREBY CERTIFY that a copy of the foregoing Notice and Motion has been furnished to:
________________________________________ (Respondent’s name and address), by Mail on
____________________ (date).
________________________________________
(Attorney’s Name)
Attorney for Petitioner/Wife

(Law Firm Name and Address)
[4] FORM: ORDER ADJUDICATING RESPONDENT IN CONTEMPT OF COURT
AND ORDER FOR COMMITMENT
ORDER ADJUDICATING RESPONDENT IN CONTEMPT OF COURT AND ORDER FOR

COMMITMENT
IN RE: THE MARRIAGE OF

____________________, IN THE CIRCUIT COURT OF
Petitioner/Wife, THE SIXTH JUDICIAL
CIRCUIT IN AND FOR PASCO
and
COUNTY, FL.
____________________ CASE NO.
Respondent/Husband ORDER ADJUDICATING
RESPONDENT IN CONTEMPT OF
COURT AND ORDER FOR
COMMITMENT
THIS ACTION was heard on Petitioner’s Motion for a Contempt Order. On the evidence presented it
is
ADJUDGED THAT:
(1) Respondent, ________________________________________ is in willful contempt of court for

this failure to comply with the order of this court dated ________________________________________
(date) compelling the production of documents requested by the Petitioner.
(2) As a sanction for this Contempt the Respondent shall
Page 34 of 37
____________________
____________________
____________________
____________________
(3) Respondent, ________________________________________, is in willful Contempt of Court for
his failure to pay weekly child support payments of $ _____________ per week for 31 consecutive
weeks beginning ____________________ (date) and ending ____________________ (date).
(4) The Respondent shall be confined to the Pasco County Jail for an indefinite period of time, but the
imposition of this period of incarceration shall be suspended for a ten-day period to give the
Respondent an opportunity to purge himself of this contempt as provided in paragraph (5). If
Respondent does not purge himself of contempt within that ten-day period, he shall report to the Pasco
County Jail at ____________________ a.m. on ____________________ (date). If the Respondent
fails to report at that time, the Sheriff or any other law enforcement officer of this state is ordered to
take the Respondent immediately into custody and to deliver him to the Pasco County Jail, all without
cost or expense to the Petitioner.
(5) The Respondent may purge himself of contempt by paying to the Sheriff of Pasco County, Florida
the following:
(a) The costs of incarceration, transportation, attachment or any other charges of the Sheriff or other
law enforcement agency of this state.
(b) Weekly child support arrearages of $ _____________ per week for a period of 31 consecutive
weeks beginning ____________________ (date) and ending ____________________ (date), or a total
of $ _____________.
(c) Attorney’s fees for the Petitioner’s attorney ________________________________________

(attorney’s name, law firm name and address), in the amount of $ ____________________.
(d) Court costs in the amount of $ ____________________.
Page 35 of 37
(6) Upon receiving all payments listed in paragraph 5, the Sheriff of Pasco County shall deliver the
payments to the clerk of this Court and shall release the Respondent from custody.
(7) The clerk of this Court shall disburse to the appropriate law enforcement agency the amounts set
forth in paragraph 5a, to the Petitioner the amounts set forth in paragraph 5b, and to the Petitioner’s
attorney the amount set forth in paragraph 5c and 5d.
(8) This Court affirmatively finds that the Respondent possesses the present ability to comply with the
purge conditions set forth in this order.
DONE AND ORDERED in Chambers, New Port Richey, Pasco County, Florida, on
____________________ (date).
________________________________________
CIRCUIT COURT JUDGE
Copies furnished to:
[5] HEARINGS; BURDEN OF PROOF
The petitioner has the burden of proof to show that the respondent has the present ability to comply
with the court order and willfully refuses to do so or, previously having had the ability, divested
himself of this ability through his fault or neglect designed to frustrate the intent and purpose of the
order.146 Inability to comply with orders is not available to a party who is responsible for creating the
inability as a defense to contempt.147 Additionally, circumstances alleged to be the cause of
noncompliance must have occurred subsequent to the order in question because the order itself, long
since final and therefore invulnerable, is itself a finding that, at the time of its entry, respondent had
the ability to comply.148

146
Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976).
147
Hopper v. Hopper, 559 So. 2d 403 (Fla. 1st DCA 1990) (where court ordered children brought to Florida and the husband obtained
a Texas order to not remove children, defense of inability to comply with Florida order was not available).
148
Faircloth v Faircloth, 339 So. 2d 650 (Fla. 1976). Recently cited in Tompkins v. Tompkins, 362 So. 2d 689 (Fla. 1st DCA 1978).
Page 36 of 37
Although the petitioner has the burden of proof, procedurally, the petitioner need only show
noncompliance; respondent then has the burden of establishing just cause for noncompliance.149 In
determining the former husband’s ability to pay, the Fourth District Court of Appeal in Siegel v.
Siegel150 ruled that the statutory exemption of IRA accounts from the claims of creditors does not
apply for the protection of IRA accounts from court orders to pay obligations under Fla. Stat. ch. 61.
The trial court must then determine whether the evidence is sufficient to justify a finding that the
defaulting party has willfully violated the court order.151
Because contempt is an equitable remedy, respondent is not limited in his proof to factors relieving him
of the obligation; he may offer any factor relevant to mitigation or excuse, or to exercise of the court’s
equitable powers, such as petitioner’s financial resources,152 conduct regarding respondent’s rights,153
and so forth. In Wise v.Wise,154 the First District Court of Appeal reversed an order finding husband
in contempt for failing to complete the necessary paperwork to name the wife as beneficiary of a
military Survivor Benefit Plan (SBP). Although the husband had been ordered to name the wife as
beneficiary of his SBP in the final judgment of dissolution of the parties’ marriage, he was precluded
by the terms of governing federal law from complying at the time the wife sought to enforce the order.
Florida Family Law Practice Manual
Copyright 2015, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
149
Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989); Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986), Faircloth
v. Faircloth, 339 So. 2d 650, 652 (Fla. 1976), granting Judge Smith’s dissent in Faircloth v. Faircloth, 321 So. 2d 87 (Fla. 1st DCA 1975);
Yandell v Yandell, 33 So. 2d 869 (Fla. 1948).
150
Siegel v. Siegel, 700 So. 2d 414 (Fla. 4th DCA 1997).
151
Connolly v. Connolly, 543 So. 2d 356 (Fla. 2d DCA 1989).
152
Even where a factor may not be a complete defense to a contempt action, it may be offered to explain either the respondent’s
conduct or to mitigate the sentence. See, e.g., Janger v. Robinson, 41 Fla. Supp. 1 (Fla. 15th 41 DCA 1974).
153
Satterfield v. Satterfield, 39 So. 2d 72 (Fla. 1949).
154
Wise v. Wise, 765 So. 2d 898 (Fla. 1st DCA 2000).
Page 37 of 37

2-14 Florida Family Law Practice Manual - 14.05

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2-14 Florida Family Law Practice Manual - 14.05

Uploaded by

Copyright:

Available Formats

2-14 Florida Family Law Practice Manual § 14.

Florida Family Law Practice Manual > CHAPTER 14 ENFORCEMENT

are still matters pending, such as petitions for rehearing.

for release from incarceration that is contemplated by the court.

gave rise to the contempt proceedings.5.6

a bridge-the-gap award was error.9.1

withhold even legal remedies.35

trial court’s equitable distribution plan.

on his feet again.

disobeyed the order of a Florida court, contempt is not an available remedy.42

husband had the ability to pay.43.8

Florida Supreme Court:

DO THE CIRCUIT COURTS OF THIS STATE HAVE JURISDICTION TO ENFORCE A

FOREIGN JUDGMENT FOR ARREARAGES OF ALIMONY OR CHILD SUPPORT BY

MEANS OF EQUITABLE REMEDIES INCLUDING CONTEMPT?

past due support.

to issue a writ of bodily attachment for execution outside Florida.47

court to dismiss the wife’s rule to show cause.

[1] WHEN IS INCARCERATION PROPER AND WHEN IS THE RIGHT TO

93.1, 93.4 and 93.5.

by the First District Court of Appeal.72 Judge Smith commented:

not comply when the decree was entered (emphasis supplied).

imprisoned for his contemptuous refusal to do so.’74

between civil and criminal contempt:

order of the court.

pay the wife’s attorney’s fees after three months of incarceration.

The essential requirements of a criminal contempt action are as follows:

Rule 3.830 (Direct):

1. Judgment shall include recital of basis of judgment.

3. Defendant shall be given opportunity to present evidence of excuse or mitigation.

4. Judgment should be signed by judge.

5. Sentence pronounced in open court.

Rule 3.840 (Indirect):

2. Defendant given reasonable time to respond.

3. Attorney may be appointed to prosecute case.

4. If charges include disrespect against or criticism of judge he should disqualify himself.

5. At conclusion of hearing judge shall sign judgment.

6. Sentence: same as 3.830 or any other criminal case.

child and provide continuing reasonable child support.87

imprisonment in non-support civil contempt proceedings, ‘fundamental fairness’ is satisfied and

likelihood of incarceration would have required appointment of counsel, Argersinger v. Hamlin,

407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972).100

as well as other important safeguards.”102

The court initially reasoned:

contemnor holds no key to the jailhouse door. [Citations omitted]104

The court went on to explain the Faircloth holding:

present ability to purge himself of contempt.105

doing so, certified the following questions:

WHERE A DEFENDANT FAILS TO APPEAR AT A HEARING ON A MOTION FOR CIVIL

CONTEMPT, AND AS A RESULT OF THE NON-APPEARANCE THE TRIAL COURT

ENTERS AN ORDER OF INCARCERATION WITH A PURGE AMOUNT ARRIVED AT

WITHOUT ACTUAL EVIDENCE OF THE ABILITY TO PAY, IS HABEAS CORPUS

AVAILABLE TO THE JAILED CONTEMNOR?

IN AN ORDER TO SUPPORT AN ORDER OF INCARCERATION FOR CIVIL CONTEMPT,

DOES THE BOWEN PRESUMPTION OF ABILITY TO PAY, WHEN NOT REBUTTED BY A

SATISFY THE SECOND BOWEN REQUIREMENT OF A SEPARATE AFFIRMATIVE FINDING

must occur for incarceration to be imposed as a sanction for civil contempt:

incarcerated on the filing of an affidavit of noncompliance by the obligee.120 However, following a

ability to pay the purge still exists.122

to fail to compute prejudgment interest on arrearages of child support payments.

incarceration component of the judgment.123.1

[2] PROCEDURES: SERVICE; NOTICE

which he or she may obtain funds to pay the purge amount.143

, Circuit Judge, on (date and time) in his Chambers

weeks beginning (date) and ending (date).

County Jail at a.m. on (date). If the Respondent