HOWELL JAMES TUTEN, APPELLANT,
v.
BETTY JANE TUTEN, APPELLEE
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In a dissolution of marriage proceeding, the husband was found in contempt for failing to pay court-ordered temporary alimony. The appellate court affirmed the contempt finding but vacated the purge amount, holding that the trial court must separately find the contemnor has present ability to pay before imposing incarceration.
The court affirmed the contempt finding and refusal to modify the temporary alimony order, but vacated the purge amount set by the trial court because the evidence failed to demonstrate that the husband had present ability to pay the purge amount at the time of the December 16 contempt finding.
[1] A notice of appeal filed after the time for appeal has expired does not confer jurisdiction on the appellate court.
[2] A trial court must separately find that a contemnor has the present ability to pay a purge amount before incarceration can be imposed to obtain compliance with a court or…
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Join FLexlaw to unlock all legal intelligence“contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order”
Establishes the legal standard from Bowen v. Bowen that requires a separate finding of present ability to pay before civil contempt incarceration
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Join FLexlaw to unlock all legal intelligenceHowell James Tuten was ordered to pay his wife, Betty Jane Tuten, temporary alimony of $100 per week in a dissolution proceeding. The husband failed t…
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SCHEB, Judge.
In a dissolution of marriage proceeding, the court ordered Howell James Tuten, the husband, to pay his wife, Betty Jane Tuten, temporary alimony of $100 per week. The husband failed to make any of the required payments. After several weeks the wife sought to hold him in contempt.
On October 2, 1985, the trial judge found the husband in contempt for failing to make payments due through September 18, 1985, and set an amount of $1,100 to purge that contempt.
On October 25, 1985, the husband filed an untimely motion to set aside that order.
Additionally, on that same date, he filed a motion seeking to modify the temporary support order. The court on December 16, 1985, denied the husband’s motions and again found him in contempt for failing to make payments due from September 18, 1985, through December 5, 1985. The trial judge ordered him to serve ninety days in jail unless he paid alimony arrearages of $1,100.
The husband filed a notice of appeal on January 13, 1986, challenging these orders. The notice is untimely as to the October 2 order; thus, we lack jurisdiction to review that order. But, we have jurisdiction to review the order of December 16, 1985. That order found the husband in contempt and set a purge amount of $1,100 for that contempt. That order denied modification of the order for temporary support.
We find merit only to the husband’s contention that the trial court erred in setting the purge amount at $1,100 in the December 16 order. In Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), the supreme court held that in a civil proceeding if “contempt is found, the trial judge must separately find that the contemnor has the present ability to pay the purge amount before incarceration can be imposed to obtain compliance with the court order.” Id. at 1280.
Here, the evidence revealed that even though the husband was working and earning sufficient wages to make the temporary alimony payments, he failed to make any payments to his wife. The evidence, however, failed to demonstrate that when he was held in contempt on December 16 he had the present ability to pay the purge amount set by the judge.
We affirm the trial judge’s order refusing to modify the temporary alimony order and finding the appellant in contempt. However, we vacate the purge amount for the December 16 contempt. We remand for further proceedings consistent with Bowen and this opinion.
DANAHY, C.J., and GRIMES, J., concur.
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Cited By
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Queener v. Queener, 495 So. 2d 269 (Fla. 2d DCA 1986)…9 days in county jail in lieu of paying that amount. We remand for an evidentiary hearing on the wife’s present ability to pay the purge amount and direct the trial court to make a specific written finding on that ability. See, e.g., Tuten v. Tuten, 495 So. 2d 270, (Fla. 2d DCA 1986) Our opinion is without prejudice to the wife’s renewing her motion for modification of the terms of payment in lump-sum alimony as to any payments accruing after November 25, 1985, the date of the filing of her petition. FRANK a…
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Keel v. Keel, 597 So. 2d 433 (Fla. 1st DCA 1992)…of his full alimony obligation under the original decree of dissolution, but relies on Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985), in support of his contention that the trial court erred in finding him in willful contempt. Bowen and Tuten v. Tuten, 495 So. 2d 270 (Fla. 1st DCA 1986), are factually different in that the trial court here expressly withheld imposition of any sanctions, subject to the former Husband’s compliance with the terms of payment under the mod [*435] ified plan. The court did not establi…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)