Posted by Nydia Streets of Streets Law in Florida Alimony
When a party fails to make alimony payments under a court order, what remedies are available to the other party? One remedy is to file a motion for contempt. In order to be successful on a motion for contempt, there has to be a showing that the payor had the ability to pay alimony and willfully failed to do so. This was an issue in the case Jacobs v. Jacques, 2D18-4858 (Fla. 2d DCA August 12, 2020).
The parties’ marital settlement agreement obligated the former husband to pay $1,000 bi-weekly to the former wife for 8 years. The former wife filed a motion for contempt and enforcement alleging the former husband failed to pay alimony. She also requested attorney’s fees and costs. The trial court granted the former wife’s motion, finding the former husband had the ability to pay the alimony and the former wife was in need of the same. The former wife’s request for attorney’s fees and costs was also granted. The former husband unsuccessfully petitioned for a rehearing and then he appealed.
The appellate court analyzed the standard for finding a party in contempt. It held “The order before us fails to include findings that the Former Husband had the present ability to pay alimony and that he willfully failed to comply with his alimony obligations. The order also fails to state any facts that would support such findings. The unsigned [hearing] minutes do not constitute an order as required by rule 12.615(d).”
Turning to the issue of attorney’s fees and costs, the appellate court found there was error in a lack of findings concerning need and ability to pay since fees were sought under Fla. Stat. 61.16. Even though there was no transcript of the hearing available, the court held “Nevertheless, ‘[a]n award of attorney's fees without adequate findings justifying the amount of the award is reversible even where the appellant has provided an inadequate record of the trial court proceedings.’ [internal citations omitted]. In determining the amount of fees to award, the trial court must ‘make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by [Rowe, 472 So. 2d at 1151].’”
An inability to pay alimony can be addressed by the court, as well as an intentional failure to pay alimony. Schedule a consultation with a Miami divorce lawyer to understand how to proceed in your case.