Samuels v. Grossman

District Court of Appeal of Florida

Samuels v. Grossman

720 So. 2d 297, 1998 Fla. App. LEXIS 14170, 1998 WL 777076

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 1998

DocketNo. 97-4979

StatusPublished

Cited by1 cases

This text of 720 So. 2d 297 (Samuels v. Grossman) 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.

Bluebook

Samuels v. Grossman, 720 So. 2d 297, 1998 Fla. App. LEXIS 14170, 1998 WL 777076 (Fla. Ct. App. 1998).

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Opinion

JOANOS, Judge.

The trial court erred in including in the November 26, 1997, order, a provision for prospective incarceration in the event appellant failed to pay the amounts ordered within the time provided, without also providing for a hearing on present ability to pay. We recognize that appellant has been the object of numerous previous contempt proceedings and findings with regard to orders to pay child support and attorney’s fees, and that the court anticipated that appellant might not pay these fees until contempt proceedings are instituted. However, this was the first time appellant had been ordered to pay these particular attorney’s fees, there had been no motion for contempt with regard to them, and no finding of contempt for failure to pay these amounts. It is improper to provide for automatic incarceration in the event of future non-compliance with a court order without also providing for an additional hearing on ability to pay. See Miller v. Miller, 587 So.2d 601 (Fla. 5th DCA 1991); see also Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)(court cannot impose incarceration for civil contempt absent finding of present ability to purge of the contempt). The order is REVERSED and REMANDED for further consistent proceedings.

ALLEN and WEBSTER, JJ., concur.

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JOANOS, Judge.

The trial court erred in including in the November 26, 1997, order, a provision for prospective incarceration in the event appellant failed to pay the amounts ordered within the time provided, without also providing for a hearing on present ability to pay. We recognize that appellant has been the object of numerous previous contempt proceedings and findings with regard to orders to pay child support and attorney’s fees, and that the court anticipated that appellant might not pay these fees until contempt proceedings are instituted. However, this was the first time appellant had been ordered to pay these particular attorney’s fees, there had been no motion for contempt with regard to them, and no finding of contempt for failure to pay these amounts. It is improper to provide for automatic incarceration in the event of future non-compliance with a court order without also providing for an additional hearing on ability to pay. See Miller v. Miller, 587 So.2d 601 (Fla. 5th DCA 1991); see also Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985)(court cannot impose incarceration for civil contempt absent finding of present ability to purge of the contempt). The order is REVERSED and REMANDED for further consistent proceedings.

ALLEN and WEBSTER, JJ., concur.

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720 So. 2d 297, 1998 Fla. App. LEXIS 14170, 1998 WL 777076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuels-v-grossman-fladistctapp-1998.

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