Miller v. Miller

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

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.