Ball v. Ball, AR-230

• Citation: 440 So.2d 677
• Decision Date: 21 November 1983
• Docket Number: No. AR-230,AR-230
• Parties: Gregory L. BALL, Appellant, v. Candace H. BALL, Appellee.
• Court: Court of Appeal of Florida (US)

Page 677

440 So.2d 677

Gregory L. BALL, Appellant, v. Candace H. BALL, Appellee.

No. AR-230.

District Court of Appeal of Florida First District.

Nov. 21, 1983.

Gene T. Moss, Moss & Edwards, Jacksonville, for appellant.

Roy E. Dezern, Jacksonville, for appellee.

LARRY G. SMITH, Judge.

The sole issue meriting discussion on this appeal is whether the trial court properly adjudged appellant in contempt of court for failure to pay certain obligations specified in the final judgment of dissolution. We reverse.

We hold that the contempt order, insofar as it relates to the husband's non-payment of the debts payable to American National Bank and to Visa, was improperly entered. First, the order is fundamentally defective in that it fails to contain an affirmative finding of appellee's present ability to pay, or willful failure to do so, or that he previously had the ability to comply with the judgment but divested himself of that ability through his fault or neglect designed to frustrate the intent and purposes of the judgment. Andrews v. Walton, 428 So.2d 663 (Fla.1983); Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Carlyle v. Carlyle, 438 So.2d 176 (Fla. 1st DCA 1983) opinion filed September 22, 1983; Robbins v. Robbins, 429 So.2d 424, 430 (Fla. 3rd DCA 1983).

Secondly, the judgment provisions calling for payment of the bank and Visa debts cannot be enforced by contempt. The facts are that before the dissolution, the husband borrowed $28,000.00 from Barnett Bank for business purposes. Stocks and bonds owned solely by the wife, acquired by inheritance from her family, were pledged as collateral. The judgment ordered the husband to pay this note and secure the release of the wife's securities. The husband was also ordered to pay the current balance owed on the Visa account, and to save the wife harmless. After the divorce the husband made a payment of approximately $14,000.00 (part of the purchase price for the pre-divorce sale of his business) on the Barnett note. Subsequently, also after the divorce, the parties borrowed $15,000.00 from American National Bank to pay off the Barnett Bank note, and the wife's securities were again pledged to secure this new loan. The husband either failed to pay the Visa account, or incurred additional charges which were unpaid, resulting in a claim for payment being made against the wife.

These debts which the final judgment ordered the husband to pay were not connected in any way to his duty to provide child support or alimony to the wife. We find that the circumstances here rule out the use of the contempt power to enforce payment. ¹ State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So.2d 255 (Fla.1941); Woods v. Butler, 418 So.2d 295 (Fla. 3rd DCA 1982); Schminkey v. Schminkey, 400 So.2d 121 (Fla. 4th DCA 1981); Chapman v. Lamm, 388 So.2d 1048 (Fla. 3rd DCA 1980); State ex rel. Reno v. Richardson, 348 So.2d 62 (Fla. 1st DCA 1977); Corbin v. Etheridge, 296 So.2d 59 (Fla. 1st DCA 1974).

Appellee contends, however, that she waived any claim for alimony in reliance upon the husband's agreement and the final judgment requiring him to pay these obligations. The stipulation between the parties, upon which the final judgment was based, contained a provision whereby each party waived any other claims for money, support, or maintenance from the other. The final judgment contains no reference to these waiver agreements, nor is support or alimony mentioned in any manner. We note that in Schminkey, supra, where the court reversed a contempt order for non-payment of a bank loan, another provision of the final judgment requiring the conveyance of real property was expressly stated to be "in lieu of alimony." 400 So.2d at 121. In a footnote the court indicated that where a requirement to pay a debt to a third party is "a form of alimony or family support," it may be enforced by contempt. Id. at 122. Although the court did not articulate its reason for pointing to the provision with respect to the real property transfer, one may infer that the court found the absence of an express "in lieu of alimony" reference with respect to the bank loan (where such a provision appeared with reference to the real property transfer) as indicative of an intent that it was not to be so considered.

From our review of the cases it appears necessary to look to the circumstances of the particular debt under consideration, as well as the specific provisions of the judgment itself, in order to determine the character of the obligation as one for alimony or family support, or a settlement of property or financial obligations. Here, the provision requiring the husband to pay the bank loan and secure the release of the wife's stock had little effect other than to memorialize and make certain the fact that the entire bank debt was to be considered the sole obligation of the husband after the divorce, and that the stocks and securities were to remain solely owned by the wife and be restored to her when the loan was paid. We are unable to accept the implication, advanced by appellee, that by making this agreement for restoring the wife's securities to her the parties considered that payment of...