Shoemaker v. Shoemaker

District Court of Appeal of Florida

Shoemaker v. Shoemaker

567 So. 2d 975, 1990 Fla. App. LEXIS 7564, 1990 WL 146912

CourtDistrict Court of Appeal of Florida

DecidedOctober 2, 1990

DocketNo. 90-212

StatusPublished

This text of 567 So. 2d 975 (Shoemaker v. Shoemaker) 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

Shoemaker v. Shoemaker, 567 So. 2d 975, 1990 Fla. App. LEXIS 7564, 1990 WL 146912 (Fla. Ct. App. 1990).

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Opinion

ALLEN, Judge.

The former husband appeals from a civil contempt order adjudging him to be in contempt for his failure to make alimony payments to the former wife. The order directed that the former husband would be incarcerated for such contempt for a period of 180 days or until such time as he should pay the amount of the arrearage.

While our review of the record reveals an adequate basis for the trial court’s adjudication of contempt, we find an absence of competent, substantial evidence revealing that the former husband had the present ability to pay the purge amount. In Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), the supreme court held that incarceration could not be used to compel compliance with a family support order absent an “affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Id. at 1279. While the order under review contains such a finding, there is not a record basis for same.

Accordingly, we reverse that portion of the order of contempt which directs that the former husband be incarcerated until he shall purge himself by payment of the purge amount. In all other respects, the trial court’s order is affirmed. We remand this cause to the trial court for further proceedings in accordance with this opinion.

ERVIN and NIMMONS, JJ., concur.

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ALLEN, Judge.

The former husband appeals from a civil contempt order adjudging him to be in contempt for his failure to make alimony payments to the former wife. The order directed that the former husband would be incarcerated for such contempt for a period of 180 days or until such time as he should pay the amount of the arrearage.

While our review of the record reveals an adequate basis for the trial court’s adjudication of contempt, we find an absence of competent, substantial evidence revealing that the former husband had the present ability to pay the purge amount. In Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), the supreme court held that incarceration could not be used to compel compliance with a family support order absent an “affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Id. at 1279. While the order under review contains such a finding, there is not a record basis for same.

Accordingly, we reverse that portion of the order of contempt which directs that the former husband be incarcerated until he shall purge himself by payment of the purge amount. In all other respects, the trial court’s order is affirmed. We remand this cause to the trial court for further proceedings in accordance with this opinion.

ERVIN and NIMMONS, JJ., concur.

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Bluebook (online)

567 So. 2d 975, 1990 Fla. App. LEXIS 7564, 1990 WL 146912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shoemaker-v-shoemaker-fladistctapp-1990.

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