Miller v. Miller

District Court of Appeal of Florida

Miller v. Miller

891 So. 2d 1201, 2005 Fla. App. LEXIS 944, 2005 WL 236055

CourtDistrict Court of Appeal of Florida

DecidedFebruary 2, 2005

DocketNo. 4D03-3919

StatusPublished

Cited by1 cases

This text of 891 So. 2d 1201 (Miller v. Miller) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Miller v. Miller, 891 So. 2d 1201, 2005 Fla. App. LEXIS 944, 2005 WL 236055 (Fla. Ct. App. 2005).

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Opinion

PER CURIAM.

We reverse the trial court’s order finding former husband in contempt for failure to pay child support because it was based on an earlier discovery sanction order striking his pleadings to contempt, precluding him from defending on the grounds of his inability to pay. See Chase v. Chase, 519 So.2d 637 (Fla. 2d DCA 1988) (trial court erred by finding husband’s ability to pay was “taken to be established” based on discovery sanction striking his pleadings even though sanction itself was within its discretion).

In a civil contempt proceeding, the trial court cannot incarcerate, even if only coer-cively, without providing the contemnor the opportunity to prove his inability to comply. That means the court cannot use discovery sanctions as a basis for finding an inability to comply. We remand for proceedings consistent with this opinion.

FARMER, C.J., SHAHOOD J. and GREENE, CHARLES M., Associate Judge, concur.

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PER CURIAM.

We reverse the trial court’s order finding former husband in contempt for failure to pay child support because it was based on an earlier discovery sanction order striking his pleadings to contempt, precluding him from defending on the grounds of his inability to pay. See Chase v. Chase, 519 So.2d 637 (Fla. 2d DCA 1988) (trial court erred by finding husband’s ability to pay was “taken to be established” based on discovery sanction striking his pleadings even though sanction itself was within its discretion).

In a civil contempt proceeding, the trial court cannot incarcerate, even if only coer-cively, without providing the contemnor the opportunity to prove his inability to comply. That means the court cannot use discovery sanctions as a basis for finding an inability to comply. We remand for proceedings consistent with this opinion.

FARMER, C.J., SHAHOOD J. and GREENE, CHARLES M., Associate Judge, concur.

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Bluebook (online)

891 So. 2d 1201, 2005 Fla. App. LEXIS 944, 2005 WL 236055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-miller-fladistctapp-2005.

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