Posted by Nydia Streets of Streets Law in Florida Alimony
A former spouse who agreed to pay over $20,000.00 per month in permanent, non-modifiable alimony was found in contempt for his failure to pay this amount for about 9 years straight. He appealed in the case Accardi v. Accardi, 4D18-1669 (Fla. 4th DCA June 12, 2019).
The appellate court affirmed the trial court’s decision to hold the former husband in contempt. However, it took issue with three decisions: (1) the trial court’s lack of explicit finding that the former husband had the ability to pay the purge amount ordered; (2) the trial court’s language in the order indicating automatic punishment for failure to pay future-due alimony; and (3) the trial court’s summary award of attorneys’ fees and costs to the former wife.
As to the finding of ability to pay, the trial court’s order stated the former husband “has the ability to pay alimony.” Since a contempt hearing focuses on a party’s ability to pay a purge amount in connection with a finding of contempt, the appellate court required the trial court to make an affirmative finding that the former husband had the ability to pay the purge amount ordered to avoid incarceration. Therefore, the case was remanded for the trial court to include this finding in its order.
Turning to the issue of future-due payments, the trial court included in its order a holding that “in the event that Former Husband fails to pay any of the purge amount or any of the monthly payments, a Writ of Arrest and Bodily Attachment shall be issued.” The use of the word “any” in this context means the former husband could be summarily arrested without a hearing if he failed to pay in the future. The appellate court reversed, holding “Issuing a writ of arrest based on Former Husband's future noncompliance to make his alimony payments is improper, as ‘civil contempt orders may not provide for incarceration based on future, anticipated noncompliance with a court's periodic support order.’ This is because due process requires ‘a hearing before incarceration, where a contemnor may challenge the allegation of noncompliance and defend on the ground that he does not have the present ability to pay…’”
Finally, with regard to the issue of attorneys’ fees and costs, the appellate court noted the trial court’s failure to weigh the parties’ respective abilities to pay such fees and costs. The appellate court reversed the order holding the former husband responsible for the fees and costs, stating “Here, the trial court did not make findings concerning the parties' need and ability. The order merely states that the evidence supports the amount of fees and costs accrued and that the amount is reasonable; this is insufficient.”
If you are a party on either side of a motion for contempt for failure to pay support, you should consult with a Miami divorce lawyer to understand your best defenses and claims in your case. Scheduling a consultation may be your first step to forming an appropriate plan for your case.