FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Duval County. Elizabeth A.
L. Weinreb, Jacksonville, for Appellant.
Jo Bondi, Attorney General, and Carrie R. McNair, Assistant
Attorney General, Child Support Enforcement, Tallahassee, for
challenges an order entered by the circuit court that adopted
a hearing officer's recommended order finding appellant
in contempt for failure to pay child support and ordering his
immediate incarceration until he paid a $500 purge. Appellant
raises several arguments, two of which merit discussion. He
argues (1) there was not competent, substantial evidence to
support the finding that appellant had the present ability to
pay the $500 purge; and (2) the hearing officer erred when
she ordered appellant's immediate arrest without the
authority to do so. The Department of Revenue (the
Department) correctly concedes error. Thus, we reverse.
September 2014, the circuit court entered an order finding
that appellant was the legal parent of two minor children.
The court ordered appellant to pay $511 a month in child
support, plus $3, 066 in retroactive child support.
January 2016, the Department filed a motion for contempt for
failure to pay child support and a notice of hearing. Hearing
officer Athiel Jones conducted a hearing on March 30, 2016,
during which the Department alleged that appellant had not
paid much in child support since the original support order
was entered, except for several $500 payments as a purge in
prior contempt proceedings. Appellant's last payment was
a partial purge payment on July 14, 2015, and he still owed
$10, 964 in child support.
testified that he did not have a job, but he wished to pay
his child support. Appellant was unable to find employment
and had applied to 30 different jobs with no success. He did
not have a driver's license at the time of the hearing,
and that had impaired his ability to find employment.
However, appellant had gotten three or four days' work
through a temporary agency at $9.30 an hour, and he was
expecting to continue getting some work from the agency over
the next couple of months. He requested that an income
deduction order be sent to the temporary agency. He stated he
had not turned down any work. A financial affidavit showed
appellant had no assets or money other than $15 cash, and
appellant further testified that he survived by receiving
shelter and food from his girlfriend.
stating that she had reviewed appellant's payment
history, the hearing officer found appellant in contempt and
ordered that he be immediately incarcerated with a $500
purge. Counsel for appellant objected and asked what
competent, substantial evidence the hearing officer thought
established that appellant had the present ability to pay the
purge amount. The Department's counsel argued that
"it's the payment history." The hearing officer
explained that "I do find he has an ability to pay. He
has an ability to earn income." Appellant's counsel
objected that was not the correct legal standard. Counsel
also objected that the hearing officer lacked the legal
authority to order that someone be incarcerated. The hearing
officer responded, "Thank you for bringing that to my
attention, " but did not rescind her order that
appellant be incarcerated. Appellant was arrested.
April 5, 2016, a hearing officer reduced the purge amount,
and appellant paid the reduced purge and was released on that
April 6, 2016, the hearing officer issued a written order on
the March 30, 2016, hearing recommending that the circuit
court find appellant in contempt. Specifically, the hearing
officer noted that appellant testified that he had no
physical disabilities that prevented him from working, that
he had done some work for a temporary agency, and that he had
previously paid two purges of $500 but had never made a
regular child support payment. A circuit court judge adopted
the recommended order on April 11, 2016. After appellant
filed his notice of appeal, the Clerk of Court determined
that appellant was indigent based on his financial affidavit.