Posted by Nydia Streets of Streets Law in Florida Alimony

When a party fails to pay court-ordered Florida alimony, he or she may be held in contempt of court. Before the court can hold a party in contempt, however, there must be an evidentiary hearing with a showing of certain factors. These factors are explored in the case Perez v. Borga, 4D18-3400 (Fla. 4th DCA October 23, 2019).

The parties final judgment of divorce obligated the former husband to pay permanent alimony to the former wife. When the former husband failed to pay as ordered, the former wife filed a motion for contempt. After a hearing, the court ordered what is known as a purge amount, ordering that the former husband pay over $87,000 within 7 days of the hearing. The former husband failed to pay this amount, and a writ of arrest and incarceration was entered. The former husband appealed, arguing it was error for the court to find him in willful contempt and that the court did not make the requisite finding of his ability to pay as required before ordering the purge amount.

The appellate court affirmed as to the finding of willful contempt. However, the court agreed with the former husband that error was committed when the trial court failed to make a finding he could pay over $87,000 in 7 days. The court held “Here, the contempt order sanctioned Former Husband with incarceration but failed to include the required separate, affirmative finding that he had the present ability to pay the purge amount, and the factual basis for such a finding.”

The court further discussed that a conflict existed in current case law on an issue related to this appeal: “We acknowledge Former Husband did not bring the lack of findings to the trial court's attention through a motion for rehearing or some other appropriate motion. We also acknowledge that the First District has held that, where the trial court fails to make the required separate affirmative finding of ability to pay the purge amount, ‘a party must alert the court of the error via a motion for rehearing or some other appropriate motion in order to preserve it for appeal.’ Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014); see also McDaniels v. McDaniels, 2019 WL 3296627, at *1 (Fla. 1st DCA July 23, 2019) (same). However, this Court's recent decision in Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018), compels our review.”

The fact that conflict was certified on the issue of rehearing in this case means the Florida Supreme Court may be compelled to resolve conflict that exists among current Florida laws concerning the requirement to file a motion for rehearing or reconsideration before an appeal can be taken. Schedule a consultation with a Miami divorce lawyer to understand how this may affect your case going forward.