MARGHERITA DOWNEY, APPELLANT,
v.
ROBERT W. DOWNEY, APPELLEE

Fla. 4th DCA | 2004-06-09
No. 4D03-1238
SHAHOOD and HAZOURI, JJ., concur.
874 So. 2d 734 Florida District Court of Appeal, Fourth District (2004) Positive Treatment
Cited by 2 cases

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Synopsis

The appellate court reversed contempt and commitment orders against a former wife for non-payment of child support because the trial court's finding that she had ability to pay the purge amount directly conflicted with its own insolvency order entered two weeks earlier based on the same financial affidavit.


Holding

The court reversed the contempt orders because the trial court's finding of present ability to pay the purge conflicted with its January 15, 2003 insolvency order. The court remanded for the trial court to conduct a hearing and make specific findings regarding the former wife's present ability to pay, recognizing that incarceration for non-payment of child support requires a prior judicial determination of ability to pay.


Headnotes

[1] A finding of present ability to pay a purge amount for child support contempt conflicts with a prior order finding the party insolvent.

[2] Incarceration for willful failure to pay child support requires a prior determination that the party has the ability to pay.

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Key Quotes

“Generally, incarceration cannot be imposed for willful failure to pay child support unless the court first determines that the party in contempt has the ability to pay.”

Establishes the fundamental legal requirement that ability to pay must be shown before contempt incarceration for child support non-payment.

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Facts & Procedural History

Margherita Downey, a former wife earning $3,406 monthly as a public defender employee, failed to pay court-ordered child support. The trial court ente…

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Opinion of the Court
STONE, J.

STONE, J.

The trial court entered orders of contempt, commitment, and for income deduction against Margherita Downey, the former wife, for the non-payment of child support. We reverse because the trial court’s finding of present ability to pay a purge conflicts with an order, entered two weeks earlier, that the former wife was insolvent.

The former wife filed a timely motion to vacate the orders, arguing that there was no evidence of her present ability to pay. Significantly, she pointed out that within a few weeks prior to the subject hearing on January 15, 2003, the court entered an order of insolvency for payment of costs in another appeal pending before this court. A contempt hearing was held on January 29, 2003. The former wife did not attend the contempt hearing at which the former husband introduced the former wife’s financial affidavit, filed a month earlier in support of an affidavit of indigency, that indicated she was employed by the office of the public defender earning a gross monthly income of $3,406.

Generally, incarceration cannot be imposed for willful failure to pay child support unless the court first determines that the party in contempt has the ability to pay. See, e.g., Gregory v. Rice, 727 So. 2d 251 (Fla.1999). On its face, the court’s January 15, 2003 finding of insolvency conflicts with the trial court’s earlier findings of the former wife’s ability to pay.

In finding that the former wife had the ability to pay the purge, the trial court relied on the former wife’s affidavit of insolvency. Significantly, it is the same financial affidavit upon which the court entered the insolvency order. In Marcellus v. Voltaire, 649 So. 2d 944 (Fla. 4th DCA 1995), the trial court entered a contempt order and incarcerated Marcellus for failing to pay child support. Id. Soon thereafter, the trial court also entered an order of indigency finding Mar-cellus indigent for the purposes of paying appellate filing fees and costs. Id. While recognizing Marcellus’s uncooperativeness in paying support, this court stated, “we none-the-less are compelled to reverse the order under review.” Id. In reversing the trial court’s order, this court relied on Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla.1985), where the supreme court held that “[t]he finding of the trial judge that the respondent was indigent for purposes of the appeal affirmatively established that the respondent was indigent and had no present ability to pay the purge amount.” Id. Accordingly, the matter was remanded for the trial court to “conduct a hearing in order to make specific findings on the appellant’s present ability to pay the purge amount....” Id.

Similarly, in Brown v. Brown, 658 So. 2d 627, 628 (Fla. 5th DCA 1995), relying on Bowen and Marcellus, the court concluded that, because Brown’s ability to pay was contradicted by the trial court’s finding of indigence for appeal purposes, the order of contempt should be reversed and remanded for the trial court to conduct a hearing in order to make a specific finding regarding Brown’s present ability to pay the purge. Id.

We recognize that in Marcellus and Broum, the indigency orders were entered shortly after, rather than before, the order on appeal. Nevertheless, because the indi-gency finding here establishes that the former wife did not have the ability to pay, we must reverse so that the trial court may make more specific findings as to her ability to pay.

All other issues raised are moot. We remand for further proceedings.

SHAHOOD and HAZOURI, JJ., concur.


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Citator

Cited By

  • R.M. v. Dep't of Child. & Families, 877 So. 2d 797 (Fla. 5th DCA 2004)
    …er was adjudged insolvent at the October 23 arraignment, yet one month later was ordered to pay $1006.00 per month in child support. He was then adjudged insolvent for purposes of appeal. It is difficult to square these orders. See Downey v. Downey, 874 So. 2d 734 (Fla. 4th DCA 2004). The cause is remanded for a noticed hearing on the issue of the amount of temporary child support. AFFIRMED IN PART; REVERSED IN PART; REMANDED. MONACO and TORPY, JJ., concur. . It is unclear why a second case number was assi…

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