IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
VICTOR G EVERETT, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED.
v. CASE NO. 1D16-2387
SARAH K EVERETT,
Appellee.
_______________________________/
Opinion filed July 1, 2016.
An appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.
Victor G Everett, pro se, Appellant.
Curtis W. Brannon of Curtis W. Brannon, P.A., Crestview, for Appellee.
PER CURIAM.
Appellant seeks an emergency stay of an order granting the former wife’s
eighth motion for contempt. We treat the motion as a motion for review of the
lower tribunal’s order denying stay, see Fla. R. App. P. 9.310(f), and affirm.
The lower tribunal granted the former wife’s eighth motion for contempt for
non-payment of child support. The court found that appellant had failed to pay any
child support since January 29, 2016, other than a court-ordered purge that came
about after the former wife filed her seventh motion for contempt, and that he is
currently $21,607 in arrears. The court found that appellant has had the ability to
pay and continues to have the ability to pay child support as ordered from his VA
disability pay, which he testified was currently $3,220 a month. The court
sentenced appellant to 120 days in the county jail, suspending the sentence for
three days for appellant to pay a purge of $4,000. The court found appellant had
the present ability to pay the purge from his disability pay, which he had not used
to pay any child support since the last court-ordered purge. The court then
summarily denied appellant’s motion to stay the order. Although appellant
subsequently transmitted to this court a pick up and commitment order, this court
has received no indication that appellant is currently incarcerated, and appellant
has not requested release.
In deciding the motion for stay, the lower tribunal was to consider the
likelihood of prevailing on appeal and irreparable harm to the appellant if the
motion is not granted. See White Constr. Co., Inc. v. State, Dep’t of Transp., 526
So. 2d 998, 999 (Fla. 1st DCA 1988). We review the lower tribunal’s decision on
the motion to stay under the “highly deferential” abuse of discretion standard. See
Sunbeam Television Corp. v. Clear Channel Metroplex, Inc., 117 So. 3d 772, 772
(Fla. 3d DCA 2012). “The idea is that the court most familiar with the controversy
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is in the best posture to determine the appropriateness and conditions of a stay.”
Id.
Appellant argues that the lower tribunal improperly ruled on the motion for
contempt without first hearing his pending petition for modification and that it did
not make a detailed showing that appellant could afford the purge. But counsel for
the former wife responds that appellant filed two petitions for modification, in
2012 and in 2014, seeking to modify his child support based on a reported increase
in the number of nights the children spent with him. Since filing the petitions, he
has failed to file the proper financial disclosure, set mediation, or get the petitions
to a hearing. Appellant has made only two child support payments since January
of 2015, when he paid less than the monthly amount, and then in February of this
year under threat of arrest. Further, appellant’s income has actually increased
slightly since entry of the original marital settlement agreement. Based on the
above facts and history, we find no abuse of discretion in the lower tribunal’s order
denying the stay.
B.L. THOMAS, WETHERELL, and WINSOR, JJ., CONCUR.
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