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Florida Appeals Court Tosses Out Contempt Order Due to Violation of Husband’s Due Process Rights

GO_TO_JAILA man who had fallen hundreds of thousands of dollars behind on alimony to his ex-wife was potentially facing a six-month jail sentence for civil contempt before successfully appealing. The 2d District Court of Appeal threw out the punishment in the contempt order because, by imposing a punishment of incarceration in a prospective fashion, the order violated the husband’s Due Process right to have a hearing on whether or not he had the present ability to pay the amount necessary to purge himself of contempt.

The divorcing couple, E.B. (husband) and C.J. (wife), had been married for nearly three decades. They arrived at a marital settlement agreement that the trial court incorporated into the couple’s divorce decree. The husband agreed to pay the wife $125,000 per year in alimony and maintain a $1 million life insurance policy naming the wife as the beneficiary. The husband eventually fell behind on his alimony and his premium payments on the insurance policy.

In the fall of 2013, the former spouses stipulated to an entry of a judgment establishing arrearages of $310,000 on the alimony and $45,000 on the life insurance. When the husband didn’t pay this judgment, the wife initiated contempt proceedings. During that litigation, the husband testified about his diminished earning situation and his having sold an exhaust services company. At the end of the presentation of this evidence, the trial court decided that the husband was capable of paying $11,400 on his arrearage per month but was willfully not paying. Having made this determination, the trial court found the husband in civil contempt and ordered him to report to the Pinellas County Jail to serve a sentence of six months or else purge the contempt by making a monthly payment of $11,400. On the 16th of each month, starting with January 2014, the court demanded that the husband make his $11,400 payment or report to jail.

The husband appealed, and the appeals court concluded that the trial court’s punishment was inappropriate because it violated E.B.’s Due Process rights. Sentencing a party to incarceration in the type of prospective manner that the trial court did in this case was not proper in a case of civil contempt. A 1985 Florida Supreme Court case, Bowen v. Bowen, outlined the parameters for incarceration for civil contempt in these types of cases. The Bowen ruling said that, in order to impose incarceration, the trial court must first find that the party has the present ability to pay the purge amount. This requirement essentially prohibited any type of order, like the one issued in E.B.’s case, that automatically imposes jail on a party for a future act of non-compliance. In other words, each month was to be judged on its own merits, and ordering a party to be incarcerated without first having a hearing and finding the party, at that precise point in time, to have the ability to pay, was a violation of the Due Process Clause.

Civil contempt of court for acts like failure to pay alimony can carry serious consequences, such as terms in jail. These cases require serious action. The hardworking South Florida civil contempt attorneys at Sandy T. Fox, P.A. have the skills and experience you need to defend against a contempt charge, or to pursue a spouse who is not complying with a court-ordered alimony or other obligation. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.

More blog posts:

Mother Declared in Contempt for Impeding Sons’ Relationship with Father, Fort Lauderdale Divorce Lawyer Blog, Dec. 3, 2014

Court Can’t Use Contempt Powers on Wife Who Didn’t Pay the Mortgage, Fort Lauderdale Divorce Lawyer Blog, Feb. 19, 2014

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