Pearce v. Pearce

341 So. 2d 282, 1977 Fla. App. LEXIS 15077

Opinion

MILLS, Judge.

Mr. Pearce appeals from an order denying his petition for reduction of child support and appeals from an order holding him in contempt for failure to pay child support.

Mr. Pearce has failed to clearly show that the trial court abused its discretion in refusing to modify child support. We cannot substitute our judgment for that of the trial court, therefore, the order denying reduction of child support is affirmed.

The contempt order adjudges Mr. Pearce guilty of willful contempt. It fails to make any affirmative finding that he presently has the ability to comply with the child support order and willfully refuses to do so, or that he previously had the ability to comply but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order. Such is necessary. Faircloth v. Faircloth, 339 So.2d 650, opinion filed November 18, 1976, Supreme Court of Florida.

Accordingly, we remand this order to the trial court to make such affirmative finding if supported by the record or otherwise vacate the order. When this is accomplished, the Clerk is directed to forward a certified copy of the order to this Court, and it will then entertain such further action as the parties to this appeal present to it.

BOYER, C. J., and McCORD, J., concur.