Posted by Nydia Streets of Streets Law in Florida Child Support

What happens if a party fails to appear at a hearing on a motion for contempt for failure to pay support? Can a party just send his/her attorney to the hearing? This depends on whether or not the party was ordered by the court to appear. This was an issue in the case Huerta v. Grajales, 4D22-796 (Fla. 4th DCA February 22, 2023).

In the parties’ divorce case, the husband was ordered to pay temporary attorney’s fees and costs, as well as expenses on the parties’ home. When the husband failed to pay as ordered, the wife sought to have him held in civil contempt. At the hearing on the wife’s allegation of contempt, the husband did not appear, but his attorney appeared for him and tried to call witnesses to establish his inability to pay. Because the husband was not present, the court refused to allow the attorney to call witnesses. The court relied on the testimony of the wife’s forensic accountant to establish the husband’s ability to pay and issued a writ of bodily attachment, setting a purge amount of over $250,000. The husband appealed, arguing his due process rights were violated when the trial court did not allow him to establish his inability to pay.

The appellate court noted “An alleged contemnor in a family support matter is presumed to have the ability to pay court-ordered support, but it is well established a court cannot order incarceration as a sanction for civil contempt without giving the alleged contemnor an opportunity to show he does not have the present ability to pay support as ordered.” The court also noted “Florida Family Law Rule of Procedure 12.615(c)(2)(B) applies when an alleged contemnor in a family support matter fails to appear for a contempt hearing after being given sufficient notice. Under that rule, if the court finds the alleged contemnor has failed to pay court-ordered support, then it shall set a reasonable purge amount and may issue a writ of bodily attachment. Fla. Fam. L. R. P. 12.615(c)(2)(B). However, if the court issues a writ of bodily attachment, it must direct the alleged contemnor be brought before the court, within forty-eight hours of execution of the writ, for a hearing on whether he has the present ability to pay support and has willfully failed to do so.”

The court concluded “The court in this case erred in failing to provide the husband with an opportunity to establish whether he had the present ability to pay. We also note that before doing so, the court did not order the husband’s personal appearance at the hearing. Because the husband sent his attorney to appear for him at the hearing, his personal non-attendance could not, without more, be construed as a willful failure to comply with the court’s order. Had the court deemed his non-appearance to be a violation of its order, the appropriate remedy would have been to issue a writ of bodily attachment and hold a hearing within forty-eight hours of its issuance to determine whether he had the ability to pay. Neither could the husband’s personal non-appearance trigger an automatic finding of his ability to pay. Before a court may incarcerate a party for failure to pay, the court must inquire into the party’s ability to pay and determine whether the party had the ability to pay but willfully refused to do so.”

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