WILLIAM LAWRENCE (LARRY) LENEVE, PETITIONER,
v.
NICK NAVARRO, SHERIFF OF BROWARD COUNTY, RESPONDENT
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A trial court held LeNeve in civil contempt for failure to pay child support and alimony, ordering 120 days' incarceration unless he paid $5,060. The appellate court reversed, holding that incarceration for civil contempt requires proof of present ability to pay the purge amount, which was absent here.
Incarceration for civil contempt requires proof that the contemnor has present ability to pay the purge amount. The trial court's findings that LeNeve was self-employed, supported by others, and a licensed real estate broker, without more, do not establish present ability to immediately pay $5,060. The petition for habeas corpus is granted and LeNeve is discharged, though without prejudice to criminal contempt proceedings.
[1] Incarceration for civil contempt for failure to pay money requires a finding that the contemnor has the present ability to pay the purge amount.
[2] A person cannot be incarcerated for civil contempt if they lack the ability to purge themselves of the contempt, even if they willfully divested themselves of that abilit…
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Join FLexlaw to unlock all legal intelligence“To incarcerate a person for civil contempt for failure to pay money as ordered, a court must not only provide for a purge condition but must also find that the person has the ability to purge himself of civil contempt.”
Establishes the mandatory requirement of proving present ability to pay before imposing incarceration in civil contempt cases
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Join FLexlaw to unlock all legal intelligenceLeNeve failed to make support payments since May 1989. He is self-employed with little income, lives with friends and family, eats mostly at his paren…
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PER CURIAM.
The trial court found petitioner in civil contempt for failure to pay child support and alimony and directed that he be incarcerated for 120 days absent payment of a purge amount of $5,060.00. Petitioner now contends that the order was improper because no evidence was presented that petitioner has the present ability to pay the purge amount. We agree.
In Bowen v. Bowen, 471 So. 2d 1274, 1277-78 (Fla.1985), the supreme court held that incarceration cannot be imposed upon a civil contemnor who lacks the ability to pay the purge amount, and expressly receded from any language in Faircloth v. Faircloth, 339 So. 2d 650 (Fla.1976), which could be construed to state otherwise. See also Knowles v. Knowles, 522 So. 2d 477, 479 (Fla. 5th DCA), rev. denied, 531 So. 2d 1354 (Fla.1988), where the court stated:
To incarcerate a person for civil contempt for failure to pay money as ordered, a court must not only provide for a purge condition but must also find that the person has the ability to purge himself of civil contempt. Even a person who has willfully or negligently divested himself of the ability to pay money as ordered cannot be incarcerated for civil contempt because he then does not have the ability to purge himself.
(Emphasis added).
The trial court in the instant case found that petitioner has the present ability to pay the purge amount because: (1) petitioner failed to make any support payments since May 1989, (2) petitioner is self-employed with little income, (3) petitioner is being supported by friends and family, and (4) petitioner is a licensed real estate broker. In our view, these four findings do not establish that petitioner has the ability to immediately pay $5,060.00.
Furthermore, H.R.S. presented no evidence at the hearing below which indicated that petitioner has the present ability or assets to pay $5,060.00. On the contrary, petitioner testified that for the past year and a half he has been attempting to develop a business but has not earned any income, that he has been living in the home of a former business associate, that he eats most of his meals at his parents’ home, that he had to borrow a car to drive to the hearing, and that he had no money with him.
During the hearing the trial court stated that petitioner had willfully failed to devote himself to employment that would enable him to pay the court-ordered support. Although this fact might support a finding of criminal contempt, it does not justify a conclusion that petitioner has the present ability to pay the purge amount. As noted in Bowen, 471 So. 2d at 1277, and Knowles, 522 So. 2d at 479, n. 3, a person who willfully disables himself to obey a court order to pay money can be held in criminal contempt of court, and a purge provision is not a necessary condition for incarceration for criminal contempt.
However, criminal contempt, unlike civil contempt, is punitive in nature and therefore requires a special procedure which gives potential criminal con-temnors the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. See Aaron v. State, 284 So. 2d 673 (Fla.1973); Fla.R.Crim.P. 3.830, 3.840. As stated in Bowen: 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.”
471 So. 2d at 1277 (emphasis original).
In the instant case, there was no evidence presented below which supports a finding that petitioner holds the “key to his cell.” Accordingly, the petition for writ of habeas corpus is granted, and the petitioner ordered discharged from custody, although without prejudice to the commencement of any appropriate criminal contempt proceeding, see Sarron v. Crawford, 464 So. 2d 644 (Fla. 3d DCA 1985), or further civil contempt proceedings.
ANSTEAD, GUNTHER and POLEN, JJ., concur.
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Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)…la. 256, 192 So. 881 (1940). See also Taylor v. Chapman, 127 Fla. 401, 173 So. 143 (1937); McCrae v. Wainwright, 439 So. 2d 868, 870 (Fla.1983). I would recede, if necessary, from any contrary implication in our previous opinions, LeNeve v. Navarro, 565 So. 2d 836 (Fla. 4th DCA 1990); Cook v. Navarro, 611 So. 2d 47 (Fla. 4th DCA 1992); or Vick v. Navarro, 567 So. 2d 495 (Fla. 4th DCA 1990). In my judgment, the procedure we should follow is that utilized in Goldstein v. Navarro, 590 So. 2d 20 (Fla. 4th DCA 1…1 / 3
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Hipschman v. Cochran, 683 So. 2d 209 (Fla. 4th DCA 1996)…custody on a pluries writ of arrest and commitment issued by the clerk of the circuit court. Because the writ issued without notice to the petitioner, contrary to the constitutional right of due process, we grant the petition. See LeNeve v. Navarro, 565 So. 2d 836 (Fla. 4th DCA 1990). On October 23, 1995, the trial court found the husband in contempt for failing to pay temporary alimony to the wife. The trial court determined that the husband was $10,-540 in arrears, that he was in willful contempt of a prev…
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Brown v. Ira Smith, 705 So. 2d 682 (Fla. 4th DCA 1998)…lation of an order of the court.” Id. at 1277. Such a special procedure gives “potential criminal contem-nors the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings.” Id.; LeNeve v. Navarro, 565 So. 2d 836, 837 (Fla. 4th DCA 1990). Criminal contempt proceedings are appropriate where the party in default has continually and willfully neglected court-ordered support obligations, or has affirmatively divested him or herself of assets and property. See B…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976)
- Aaron v. State, 284 So. 2d 673 (Fla. 1973)
- Knowles v. Knowles, 522 So. 2d 477 (Fla. 5th DCA 1988)
- Sarron v. Crawford, 464 So. 2d 644 (Fla. 3d DCA 1985)