Bowen v. Bowen

• Decision Date: 20 June 1985
• Docket Number: No. 64906,64906
• Parties: 10 Fla. L. Weekly 318 Eugenia BOWEN and the Florida Department of Health and Rehabilitative Services, Petitioners, v. Frankie L. BOWEN, Respondent.
• Court: Florida Supreme Court

Page 1274

471 So.2d 1274

10 Fla. L. Weekly 318

Eugenia BOWEN and the Florida Department of Health and Rehabilitative Services, Petitioners, v. Frankie L. BOWEN, Respondent.

No. 64906.

Supreme Court of Florida.

June 20, 1985.

Joseph R. Boyd and Susan S. Thompson of Boyd, Thompson & Williams and Chriss Walker, Dept. of Health and Rehabilitative Services, Tallahassee, for petitioners.

Robert T. Connolly and Michael A. Campbell, Florida Rural Legal Services, Inc., Bartow, for respondent.

Miriam E. Mason, Tampa, and N. David Korones, Clearwater, amicus curiae for the Executive Council to the Family Law Section of the Florida Bar.

OVERTON, Justice.

This is a petition to review Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984), in which the Second District Court of Appeal held that a civil contempt proceeding was transformed into a criminal contempt proceeding where the trial judge, without regard to the contemnor's ability to purge himself of contempt, imposed imprisonment for failure to pay child support on the ground that the contemnor wrongfully used his resources for purposes other than making the court-ordered support payments. The district court reversed the trial court's judgment, concluding that due process required the appointment of counsel and other due process protections in such a proceeding. We find conflict with Waskin v. Waskin, 452 So.2d 999 (Fla. 3d DCA 1984). ¹ For the reasons expressed, we agree with the district court that the record under review fails to establish that the respondent had the present ability to pay the arrearage and that, under the facts of this case, the respondent was improperly incarcerated for civil contempt. We recognize the need to explain our decisions in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Garo v. Garo, 347 So.2d 418 (Fla.1977); Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); Lamm v. Chapman, 413 So.2d 749 (Fla.1982); and Andrews v. Walton 428 So.2d 663 (Fla.1983), and harmonize them with multiple district court decisions on this issue. In this opinion, we will attempt to clarify the law with respect to the use of civil and criminal contempt in family support matters.

In the instant case, the petitioner Florida Department of Health and Rehabilitative Services (HRS) filed an action against the respondent, Frankie L. Bowen, to establish the amount of child support to be paid by the respondent to HRS in reimbursement for public assistance payments made to the respondent's estranged wife, Eugenia Bowen, also a petitioner in this cause. HRS obtained a default against the respondent. The circuit court judge entered an order of support in July, 1982, directing the respondent to pay $163 monthly to HRS. When respondent failed to make the payments and to respond to an order to appear and show cause why he should not be held in contempt, ² a warrant was issued for his arrest. In December, 1982, the trial court held the respondent in contempt, found him financially able to make the support payments, and modified the prior order by directing him to make weekly payments of $50 to HRS. The respondent again failed to make the payments and the court issued a second order for him to appear and show cause. This order warned that respondent was subject to imprisonment and/or fines if adjudged in contempt, and admonished him to bring "all proof you may have such as pay-stubs, income tax returns, doctor's statements, receipts, etc., to show why you have not made these payments."

Pursuant to the second order, the respondent presented evidence that he had been laid off from his $140 per week job as a painter in May, 1982, due to a general cutback in the employer's work force; that despite a diligent search for employment, he remained unemployed until January 1, 1983, except for occasional yard work, for which he never earned more than $25 per week; and that on January 21, 1983, he received a paycheck and tendered $200 to HRS, which an HRS employee refused to accept until after the scheduled February 11, 1983, hearing. The record reflects that at the February 11 hearing, the trial judge informed respondent that he was free to present any evidence or witness on his own behalf, that respondent was not represented by counsel, and that respondent asked questions of an HRS representative, who testified that HRS employees are instructed to accept any payment tendered. Respondent was unable to name or describe the person whom he claimed had refused to accept the tendered payment. The trial judge informed respondent that he was $916 in arrears in child support payments and asked how much he could pay at that point. Respondent stated that he could pay $200.

In adjudicating respondent in contempt for failure to make the support payments, the trial judge found that respondent previously had the ability to comply with the support order, but had divested himself of that ability through his own fault or neglect designed to frustrate the intent or purpose of the order. The respondent was sentenced to five months and 29 days in jail with the provision that he could purge himself of contempt by paying the $916 arrearage plus $50 court costs. The trial court also found the respondent indigent for the purpose of an appeal to the district court of appeal.

In reversing the respondent's conviction and sentence, the district court noted that, although the record lacked "total clarity concerning [respondent's] inability to pay," the case came to it "on a finding that [respondent] was unable to pay and that his inability was his own fault." 454 So.2d at 567. It concluded that, because the trial court's order imposed incarceration on a finding that respondent wrongfully divested himself of the ability to pay, without a finding that respondent had the present ability to pay the purge amount, the contempt proceeding was criminal rather than civil in nature. Since the proceeding was criminal, the district court held that the judgment imposing incarceration could not be affirmed because respondent was not afforded the right to court-appointed counsel at the contempt hearing.

HRS seeks a reversal of that holding, contending that this Court's holding in Faircloth permits a judge to incarcerate a defaulting parent in a civil contempt proceeding upon a finding that the parent has divested himself of the ability to comply with the court's support order through his own fault or neglect designed to frustrate the order. HRS asserts that, under such circumstances, there is no need to show that the defaulting party has a present ability to purge himself of contempt and there is no right to counsel.

The respondent counters by asserting that a jail sentence unaccompanied by a purge condition that is within the power of the contemnor to accomplish is in fact a sentence for criminal contempt, requiring the application of full due process protections. He argues that Faircloth focused solely on the adjudicatory phase of the contempt hearing and did not address the requirements for a civil incarceration order after an adjudication of contempt. He asserts that our subsequent decisions in Pugliese and Andrews set forth the requirement that a civil contemnor must possess the present ability to purge himself of contempt before incarceration can be imposed.

As this Court has previously stated, the purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply. This ability to comply is the contemnor's "key to his cell." Pugliese. The purpose of criminal contempt, on the other hand, is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court. Andrews; Pugliese; Demetree v. State ex rel. Marsh, 89 So.2d 498 (Fla.1956); In re S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965). Because this type of proceeding is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in more typical criminal proceedings. See Aaron v. State, 284 So.2d 673 (Fla.1973); see also Fla.R.Crim.P. 3.830, 3.840. We continue to adhere to the view that incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt. Without the present ability to pay from some available asset, the contemnor holds no key to the jailhouse door.

Confusion concerning the requirement that a civil contemnor have the ability to purge has resulted from two separate statements in our Faircloth decision. In the first, we stated:

We hold a trial judge must make an affirmative finding that either (1) the petitioner presently has the ability to comply with the order and willfully refuses to do so, or (2) that the petitioner previously had the ability to comply, but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

339 So.2d at 651. In the second, we expressly approved the following excerpt from Judge Robert Smith's dissenting opinion in Faircloth v. Faircloth, 321 So.2d 87, 94 (Fla. 1st DCA 1975):

Upon the affected party's failure to discharge his burden of proving that he is disabled to pay by reason of intervening factors not due to his own neglect or fault, the chancellor may find as a fact ... that any disability was self-induced. And on that finding the chancellor may order the defaulting party to pay or be imprisoned for his contemptuous refusal to do so.

339 So.2d at 652. To the extent these statements indicate that incarceration can be imposed upon a civil contemnor who lacks the ability to pay the purge amount we recede from this language. Although we did not directly address in that opinion the purge requirement of a civil contempt...