NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JEFFREY R. FULLER, )
)
Appellant, )
)
v. ) Case No. 2D13-2962
)
NANCY LORRAINE ELIZABETH DUBÈ )
FULLER n/k/a NANCY LORRAINE )
ELIZABETH DUBAY, )
)
Appellee. )
___________________________________ )
Opinion filed July 30, 2014.
Appeal from the Circuit Court for Pinellas
County; Catherine M. Catlin, Associate
Judge.1
Jeffrey R. Fuller, pro se.
Nancy Lorraine Elizebeth Dubè Fuller,
pro se.
MORRIS, Judge.
Jeffrey Fuller, the former husband, appeals an amended order on Nancy
Dubay, the former wife's motion for civil contempt. We reverse that portion of the trial
1
The Florida Supreme Court assigned Judge Catlin of the Thirteenth
Judicial Circuit to proceed as a temporary judge of the Sixth Judicial Circuit in the matter
between these parties.
court's order finding him in contempt, but we affirm the remainder of the order without
comment.2
The parties married in 1997 and have three adult children. In 2007 a final
judgment was entered dissolving the marriage. In 2008 a supplemental final judgment
was entered ordering the former husband to pay $4500 a month in permanent alimony
to the former wife. In 2012 the trial court entered an order finding the former husband in
contempt for failing to pay the court-ordered alimony to the former wife. This court
"affirm[ed] without further comment the trial court's finding that the [f]ormer [h]usband
had the present ability to pay the required sums and its holding him in contempt for
failing to do so." Fuller v. Fuller, 129 So. 3d 394, 396 (Fla. 2d DCA 2013). But we
reversed for the trial court to strike language finding that the former husband had hidden
sources of income because that specific issue had not been argued below. Id.
In 2013, the former wife filed another motion for contempt. The trial court
held a hearing on May 20, 2013, and orally pronounced that "the [m]otion for [c]ontempt
is denied for lack of proof of a purge." On May 29, 2013, the trial court entered a written
order on the former wife's motion for contempt finding the former husband in contempt
and entering a money judgment for the former wife. The trial court, however, denied the
former wife's request to incarcerate the former husband on the basis that "the [f]ormer
[w]ife failed to establish a purge amount that the [f]ormer [h]usband could pay." The
former husband filed a motion for rehearing and reconsideration, and on June 19, 2013,
2
The former wife also filed a motion to disburse arrearages. The trial court
denied the former wife's motion to disburse arrearages but granted a money judgment
against the former husband in the amount of $90,314.46.
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the trial court entered an amended order, reducing the amount of arrearages and the
money judgment to $90,314.46.
On appeal, the former husband argues that the trial court erred in finding
him in contempt in its written order because the former wife did not present evidence of
the former husband's present ability to pay the court-ordered alimony and because the
trial court orally denied the former wife's motion for contempt.
The amended written order finding the former husband in contempt is
inconsistent with the trial court's oral ruling denying the motion for contempt. It appears
that the trial court may have merged the distinct issues to be addressed in a civil
contempt proceeding in family support matters set forth in Bowen v. Bowen, 471 So. 2d
1274, 1278 (Fla. 1985).
[T]he initial order or judgment directing a party to pay
support or alimony is predicated on an affirmative finding
that the party has the ability to pay. This initial judicial
determination creates, in subsequent proceedings, a
presumption that there is an ability to pay. In a civil
contempt proceeding for failure to pay child support or
alimony, the movant must show that a prior court order
directed the party to pay the support or alimony, and that the
party in default has failed to make the ordered payments.
The burden of producing evidence then shifts to the
defaulting party, who must dispel the presumption of ability
to pay by demonstrating that, due to circumstances beyond
his control which intervened since the time the order
directing him to pay was entered, he no longer has the ability
to meet his support obligations. The court must then
evaluate the evidence to determine whether it is sufficient to
justify a finding that the defaulting party has willfully violated
the court order. Once the court finds that a civil contempt
has occurred, it must determine what alternatives are
appropriate to obtain compliance with the court order. If
incarceration is deemed appropriate, the court must make a
separate, affirmative finding that the contemnor possesses
the present ability to comply with the purge conditions set
forth in the contempt order.
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Id. (emphasis added).
We note that the record supports a finding of contempt because the
former wife satisfied her burden and the former husband failed to dispel the
presumption that he had the ability to pay. See Driggers v. Driggers, 127 So. 3d 762,
764 (Fla. 2d DCA 2013) ("Unquestionably, the final judgment of dissolution created a
presumption that [the former husband] has the ability to pay alimony. He bears the
burden to show that he can no longer pay due to changed circumstances."). Yet, the
trial court specifically stated that "the [m]otion for [c]ontempt is denied for lack of a proof
of purge." It appears that the parties and the trial court were concerned only with
whether the former husband had the ability to pay the substantial purge amount and
whether the trial court could order incarceration. It is not clear if the trial court found that
a civil contempt had not occurred or if a finding of civil contempt is implicit in the trial
court's ruling on the purge/incarceration issue and the entry of a money judgment
against the former husband; accordingly, we reverse the portion of the order finding the
former husband in contempt and remand for the trial court to make findings in
accordance with the procedure set forth in Bowen.
Affirmed in part, reversed in part, and remanded.
DAVIS, C.J., and CASANUEVA, J., Concur.
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