FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Osceola County, Diana M. Tennis,
R. Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant.
Appearance for Appellee.
Carter ("Former Husband") appeals an order denying
his motion for temporary relief regarding his alimony
obligations and granting Deborah Hart's ("Former
Wife") motion for civil contempt for his failure to pay
alimony. We affirm.
parties' marriage was dissolved in 2013 with the final
judgment ordering Former Husband to pay Former Wife $750 per
month in permanent periodic alimony. In February 2016, Former
Husband filed a supplemental petition to reduce or eliminate
his alimony payment based upon two alleged substantial
changes in circumstances since the final judgment. Shortly
thereafter, Former Wife filed a pro se motion for contempt
because Former Husband had stopped paying his monthly
alimony. Following a hearing on Former Wife's motion, the
court deferred its ruling and provided Former Husband leave
to file an amended supplemental petition for modification of
alimony, which he did. Subsequently, Former Husband also
filed a motion for temporary relief to reduce or eliminate
trial court held a simultaneous hearing on Former
Husband's motion for temporary relief and Former
Wife's motion for contempt. Both parties were present and
testified at the hearing, and Former Husband was represented
by counsel. The court denied Former Husband's motion,
without prejudice, finding that some aspects of Former
Husband's testimony were "not particularly
credible" and that he "had not proven a substantial
permanent involuntary change of circumstances" to
justify a reduction in his alimony payment. The court granted
Former Wife's motion, finding Former Husband to be in
willful contempt of the final judgment for failing to pay
alimony while having the ability to do so. The court
determined that Former Husband's alimony arrearages
totaled $7096.28 and set that amount as the purge to be paid.
The court order also provided Former Husband with forty days
to pay the purge amount and that if he failed to do so, Former
Husband was to be "incarcerated indefinitely, "
until the purge was paid.
appeal, Former Husband first argues that the trial court
erred in holding a hearing on Former Wife's later-filed
motion for contempt for nonpayment of support while his
supplemental petition for a downward modification of alimony
was pending. See Rosenblum v. Rosenblum,
178 So.3d 49, 50 (Fla. 1st DCA 2015) (holding that former
husband was entitled to have his motion to modify child
support heard and resolved before or simultaneously with the
hearing on the former wife's later-filed motion for
contempt); Herrera v. Sanchez, 885 So.2d 480, 481-82
(Fla. 5th DCA 2004) (reversing the order of contempt for
failure to hold a hearing on a petition for downward
modification, among other reasons). We conclude that Former
Husband is not entitled to relief because the trial court
held a simultaneous evidentiary hearing on Former Wife's
motion for contempt and Former Husband's motion for
temporary reduction or termination of alimony that contained
the identical allegations and grounds for relief contained in
his amended supplemental petition for modification of
Husband's remaining arguments challenge certain aspects
of the contempt provisions of the order on appeal.
Preliminarily, we observe that Former Husband raises no issue
with the trial court's finding of civil contempt, but
instead argues that the court erred in finding that he had
the then-present ability to pay the purge amount. See
Bowen v. Bowen, 471 So.2d 1274, 1280 (Fla. 1985)
("In the event [civil] 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."). We
review the trial court's decision to exercise its civil
contempt power under an abuse of discretion standard of
review. Jaffe v. Jaffe, 17 So.3d 1251, 1253 (Fla.
5th DCA 2009) (citing Fox v. Haislett, 388 So.2d
1261, 1265 (Fla. 2d DCA 1980)).
Excluding any reference by the trial court in its order
regarding Former Husband's ability to use credit cards to
pay his purge, the court nevertheless found that Former
Husband's available assets exceeded the purge amount,
thus evidencing his present ability to pay the purge. See
Bowen, 471 So.2d at 1279 ("In determining whether
the contemnor possesses the ability to pay the purge amount,
the trial court is not limited to the amount of cash
immediately available to the contemnor; rather, the court may
look to all assets from which the amount may be
obtained."). The court also provided in its order that
if Former Husband had not paid his purge within forty days
and was thereafter incarcerated, Former Husband was to be
brought back before the court within forty-eight hours for a
hearing to determine his continuing ability to pay the
purge. Under these facts and circumstances, we
find no abuse of discretion.
Former Husband asserts that his due process rights were
violated in two ways because Former Wife did not specifically
request incarceration in her pro se motion for contempt and
neither her motion for contempt nor the notice of hearing
complied with Florida Family Law Rule of Procedure 12.615(b)
because the following language from this rule was lacking:
FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT
ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU
ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A
HEARING IS HELD.
the latter assertion, our record does not reveal whether this
caveat was provided to Former Husband in any notice of
hearing. Regardless, Former Husband is not entitled to
relief. In Martyak v. Martyak, 881 So.2d 48 (Fla.
4th DCA 2004), the Fourth District explained that at a civil
contempt hearing, the trial court proceeds differently
depending upon whether or not the alleged contemnor is
present for the hearing. 881 So.2d at 49. If present, the
court is to determine whether the alleged contemnor has the
present ability to pay and willfully failed to pay.
Id. "[I]f the alleged contemnor is not
present, then the court is to set a reasonable purge amount
and may issue the writ of bodily attachment that was
threatened in the notice [required by rule 12.615(b)]."
Id. at 49-50. However, if the writ is issued, the
contempt order must direct that upon execution of the writ,
the alleged contemnor is to ...