HERBERT A. COOK, PETITIONER,
v.
HONORABLE NICK NAVARRO, IN HIS OFFICIAL CAPACITY AS SHERIFF OF BROWARD COUNTY, FLORIDA, AND/OR HIS SUCCESSOR IN OFFICE, RESPONDENT
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The court held that a petitioner is entitled to a hearing on their present ability to purge a civil contempt order, especially when a significant amount of time has passed since the order was entered.
[1] A party incarcerated for civil contempt for failure to pay child support is entitled to a hearing on their present ability to purge the contempt when a substantial period…
[2] A court must conduct a hearing to determine a contemnor's present ability to pay a purge amount when requested, especially after a significant delay between the contempt…
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Join FLexlaw to unlock all legal intelligencePetitioner was held in civil contempt for failure to pay child support, with a purge amount set. Over a year later, he was arrested and claimed inabil…
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PER CURIAM.
Petitioner has filed for habeas corpus relief, claiming that he has been incarcerated on an order of civil contempt for failure to pay child support. That order was entered on August 9,1991, and provided for a purge amount of $51,960.24. In the order the court made a finding of present ability to pay. That finding was the result of the court’s prior ruling prohibiting Petitioner from introducing any evidence with regard to financial inability because of his failure to comply with discovery orders.
Petitioner was arrested in November 1992, over a year after the order of contempt which found a present ability to pay. Appellant, a victim of Alzheimer’s disease, through counsel requested a hearing on various issues, including the fact that he lacked the present ability to purge himself of the contempt. Opposing counsel objected, and the trial court refused to take evidence on this issue.
Appellant is entitled to a hearing where he has the opportunity to demonstrate that he does not have the ability to pay the substantial purge amount. Bowen v. Bowen, 471 So. 2d 1274 (Fla.1985), states, “Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply.” Id. at 1277. Here, the first order of contempt was entered over a year before appellant’s arrest. As in Laing v. Laing, 574 So. 2d 279 (Fla. 3d DCA 1991), the passing of a substantial period of time between the order of contempt and appellant’s seizure compels the court upon petitioner’s request to conduct a Bowen hearing on petitioner’s present ability to purge himself. We therefore order the trial court to conduct such a hearing within five working days. We would point out, however, that in such hearing the petitioner has the burden of going forward with the evidence. See Laing.
We are also concerned about the competency of the petitioner and would suggest that the trial court may wish to consider application of Rule 1.210(b), Florida Rules of Civil Procedure.
HERSEY and WARNER, JJ., concur. LETTS, J., dissents without opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pompey v. Cochran, 685 So. 2d 1007 (Fla. 4th DCA 1997)…an, 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 1991). To carry Goldstein a step further, I would tre…1 / 3
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Peterson v. Asklipious, 855 So. 2d 704 (Fla. 4th DCA 2003)…g that he no longer had the ability to make the payments ordered in the attorney’s fee order, and a due process right to put on whatever evidence he could to carry that burden. Walker v. Edel, 727 So. 2d 359 (Fla. 5th DCA 1999); see Cook v. Navarro, 611 So. 2d 47 (Fla. 4th DCA 1992). Although it may be true that he could, in fact, make these payments, he was nevertheless entitled to demonstrate his inability to do so. Because the court did not allow him to present evidence of his inability to pay, we reverse…
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Adams v. Utah Power Sys., LLC, 255 So. 3d 968 (Fla. 3d DCA 2018)…01 So. 2d 315, 317 (Fla. 4th DCA 2005) (noting that in civil contempt proceedings, "[p]etitioner was entitled to an evidentiary hearing at which the witnesses were sworn and any other evidence presented was duly verified"); see also Cook v. Navarro, 611 So. 2d 47, 47 (Fla. 4th DCA 1992) ("Appellant is entitled to a hearing where he has the opportunity to demonstrate that he does not have the ability to pay the substantial purge amount."). Petitioner asserted in his Fourth Motion to Quash that he had complied…
Authorities Cited
- Eugenia Bowen & the Fla. Dep't of Health & Rehabilitative Servs. v. Bowen, 471 So. 2d 1274 (Fla. 1985)
- Laing v. Laing, 574 So. 2d 279 (Fla. 3d DCA 1991)