FAY WILLIAM SMALL, APPELLANT,
v.
EMILY H. SMALL, APPELLEE
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The court addressed whether a civil contempt order incarcerating the appellant for failure to pay alimony was void due to missing findings and purging provisions. The court held that while the order should have explicitly recited the required Faircloth findings on the commitment order itself, the findings were sufficiently established through the Master's Report and approved by the Circuit Judge, but the order must be remanded to include specific purging terms.
The court held that although it would be better form for the commitment order to explicitly repeat the Faircloth findings, such failure is not reversible error when the findings were made based on testimony, approved by the Circuit Judge, and sufficiently memorialized in the official records. However, the committal order must contain the specific terms whereby the appellant may purge himself of contempt to obtain release.
[1] A civil contempt order for failure to pay alimony is void if it does not affirmatively recite that the contemnor has the ability to pay.
[2] A civil contempt order for failure to pay alimony is void if it does not provide specific purging provisions.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a 'process' contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void”
Establishes the Faircloth standard requiring affirmative findings on the commitment order itself
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Join FLexlaw to unlock all legal intelligenceThe appellant was ordered incarcerated for civil contempt based on his refusal to pay alimony. A General Master took testimony and reported findings t…
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WALDEN, Judge.
The essential issue in this appeal is whether the order incarcerating appellant for civil contempt on account of his refusal to pay alimony is void because it neither recites that appellant’s contempt was wilful and that he had the power to pay nor does it provide for purging.
As to the first aspect, Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976), provides:
Under the most respectable authority on contempt that we have been able to find, a “process” contempt commitment for refusing to obey an order of court must be based on an affirmative finding that it is within the power of the defendant to obey the order, and such finding must be made to appear on the face of the order of commitment, else it is void. Ex parte Cohen, 6 Cal. 318; Repalje on Contempt, par. 129.
Here the committal order did not recite the requisite finding. However, here, different from Faircloth, the services of a General Master were employed to take the testimony and his report specifically found:
(1)
(c) The defendant presently has the ability to comply with the Order and willfully refuses to do so or previously had the ability to comply but divested himself through his fault or neglect designated to frustrate the intent and purpose of the order. Thereafter the Circuit Judge overruled appellant’s Exceptions and ratified and approved the Master’s Report. It is our opinion that while it would be perhaps better form for the Circuit Judge in such cases to repeat and recite the finding mandated by Faircloth in the order of commitment,1 we deem it not to be reversible error to fail to do so under the circumstances of this ease. We hold that the Faircloth finding was made based on testimony, approved by the Circuit Judge, and sufficiently memorialized in the official records.
As to the second aspect, that being the failure to provide purging provisions in the order of commitment, Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979), provides the correct rationale for requiring such provisions:
In order for the contemnor truly to “carry the key to his prison in his own pocket,” see Demetree v. State ex rel. Marsh, 89 So. 2d 498 (Fla.1956), it is required that the order which authorizes his imprisonment, in this case, the order of commitment, itself show the means by which that key can be utilized. It is hardly appropriate to compel his jailer to investigate the contents of prior orders in the case in order to determine that the prisoner, by having purged himself of contempt, has become entitled to release.
(At 467.)
We hold that the committal order must contain the specifics whereby appellant may. purge himself of contempt and obtain his release from confinement.
We affirm and remand with instructions to add the terms whereby appellant may purge himself of contempt to the order of commitment.
Affirmed and remanded with instructions.
BERANEK and HERSEY, JJ., concur. . Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Smith v. Smith, 430 So. 2d 521 (Fla. 2d DCA 1983)…he Fourth District Court of Appeal recently upheld a contempt committal order which failed to recite on its face that the defendant had the present ability to comply with the order of the court and that he willfully refused to do so. Small v. Small, 422 So. 2d 1054, 1055 (Fla. 4th DCA 1982). However, Small is distinguishable. There, the trial court ratified and approved a general master’s report which specifically found that the defendant had the present ability to comply with the order and that he willfully r…1 / 2
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Alves v. Barnett Mortg. Co. & J.J. Kislak Mortg. Corp., 688 So. 2d 459 (Fla. 4th DCA 1997)…t order in this case is defective because it lacks a specific purge provision adequately informing appellant of the exact dollar amount necessary to purge his contempt. See Rosen v. Rosen, 579 So. 2d 846 (Fla. 4th DCA 1991); see also Small v. Small, 422 So. 2d 1054 (Fla. 4th DCA 1982); Novak v. Snieda, 659 So. 2d 1138 (Fla. 2d DCA 1995); Palmer v. Palmer, 530 So. 2d 508 (Fla. 3d DCA 1988). Because the purge provision is the contemnor’s key to the jailhouse cell, see Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla.1…
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Gonzalo Munevar v. Munevar, 423 So. 2d 1003 (Fla. 3d DCA 1982)…PER CURIAM. Affirmed. Small v. Small, 422 So. 2d 1054 (Fla. 4th DCA).…
Authorities Cited
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- Demetree v. State of Fla. ex rel. John D. Marsh, 89 So. 2d 498 (Fla. 1956)
- Hammond v. Sandstrom, 376 So. 2d 466 (Fla. 3d DCA 1979)