Victor Moskalenko v. Scott Israel, Sheriff of Broward County

162 So. 3d 131, 2014 WL 6910660

• Court: District Court of Appeal of Florida
• Decided: December 10, 2014
• Docket: 4D14-3299
• Status: Published

Opinion

PER CURIAM.

We grant the petition for writ of habeas corpus filed in this case without prejudice to the trial court issuing an order that complies with Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). “[I]ncarceration cannot be imposed upon a civil con-temnor for willfully failing to comply with a court order unless the court first determines that the contemnor has the present ability to purge himself of contempt.” Id. at 1278.

Even if a contemnor’s own actions caused him to lack the ability to pay, he may not be incarcerated indefinitely for civil contempt if he lacks the ability to pay the purge. Elliott v. Bradshaw, 59 So.3d 1182 (Fla. 4th DCA 2011). In this case, the written contempt order provides that the petitioner may purge by tendering to the personal representative of his deceased wife’s estate the total net proceeds from the sale of the real property in question, with satisfactory documentation that the amount accurately reflects the net proceeds. However, the order does not contain a finding that the petitioner has the present ability to comply with the purge provisions.

Accordingly, petitioner shall be released from custody unless the trial court enters an order that complies with Bowen by 5:00 p.m. on the third business day following the date of issuance of this opinion. This decision does not preclude further civil contempt proceedings or criminal contempt proceedings if appropriate. See Elliott, 59 So.3d at 1184. We will entertain no motions for rehearing and the clerk is directed to issue the mandate forthwith.

Petition Granted.

STEVENSON, CONNER and FORST, JJ., concur.