final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Richard Lopane, Judge; L.T. Case No.
C. Bofill of Bofill Law Group, Miami, for appellant.
Coyle Colbert, Miami, for appellee.
Aurelio Perez ("Former Husband") appeals the trial
court's order finding him in contempt and ordering
incarceration as a sanction for failing to make court ordered
alimony payments to Alicia Maria Borga ("Former
Wife"). Former Husband argues the trial court erred by:
(1) finding Former Husband in willful contempt for failing to
pay court ordered alimony; and (2) failing to make the
required finding that Former Husband has the present ability
to pay the purge amount. We affirm on the first issue without
further comment. As to the second issue, we reverse and
remand, finding that the trial court failed to make the
required separate, affirmative finding of present ability to
pay the purge amount.
parties' final judgment of dissolution of marriage
required Former Husband to pay Former Wife monthly permanent
periodic alimony. Former Husband failed to pay the alimony
payments, and Former Wife moved to have him held in contempt.
Following an evidentiary hearing, the trial court found
Former Husband in "willful contempt of the previous
Final Judgment" and ordered incarceration as a sanction
unless Former Husband paid the purge amount of $87, 673.65
within seven days of the order. Former Husband failed to pay
the purge amount and a writ of arrest and incarceration was
entered. This appeal follows.
well settled law that once the trial court imposes
incarceration as a sanction, the court's order must also
contain "a separate affirmative finding that the
contemnor has the present ability to comply with the purge
and the factual basis for that finding." Ramirez v.
Ramirez, 84 So.3d 434, 435 (Fla. 4th DCA 2012) (quoting
Fla. Fam. L. R. P. 12.615(e)). Moreover, the presumption of
ability to pay which attaches at the initial part of the
contempt proceeding "is not a substitute for the
separate, affirmative finding of ability to pay required for
incarceration." Pompey v. Cochran, 685 So.2d
1007, 1014 (Fla. 4th DCA 1997) (internal quotation marks
the contempt order sanctioned Former Husband with
incarceration but failed to include the required separate,
affirmative finding that he had the present ability to pay
the purge amount, and the factual basis for such a finding.
acknowledge Former Husband did not bring the lack of findings
to the trial court's attention through a motion for
rehearing or some other appropriate motion. We also
acknowledge that the First District has held that, where the
trial court fails to make the required separate affirmative
finding of ability to pay the purge amount, "a party
must alert the court of the error via a motion for rehearing
or some other appropriate motion in order to preserve it for
appeal." Williams v. Williams, 152 So.3d 702,
704 (Fla. 1st DCA 2014); see also McDaniels v.
McDaniels, 2019 WL 3296627, at *1 (Fla. 1st DCA July 23,
2019) (same). However, this Court's recent decision in
Fox v. Fox, 262 So.3d 789 (Fla. 4th DCA 2018),
compels our review.
Fox, this Court held that a party may raise on
appeal the issue of the trial court's failure to make
statutorily required findings regarding alimony, equitable
distribution, and child support without having previously
filed a motion for rehearing. Id. at 793-94. We
Dissolution of marriage cases are unlike other civil
litigation. The final dissolution judgment is often not the
end of the litigation process. The final judgment establishes
ground zero for the purpose of petitions for enforcement,
modification, and contempt proceedings. Without the
statutorily-required findings of fact, it is difficult, if
not impossible, to review the record for evidentiary support
of the judgment, to enforce a judgment, or to subsequently
determine if there has been a material change in
circumstances sufficient to justify a modification of that
Rather than refusing to reach an appellate issue for want of
a motion for rehearing, it is far better to require a trial
court to make the statutorily-required findings. To evade
review of a trial court's failure to make required
findings because someone either forgot or failed to move for
rehearing frustrates the very purpose for those findings.
Requiring a motion for rehearing is a rule that is too
restrictive and imprecise to operate fairly where children
and families are the focus. This is especially true where
many family court cases are handled pro se.
Id. We find that the same rationale in Fox
extends to a final order of contempt stemming from the
failure to pay ...