Broyles v. Broyles, 90-368

• Decision Date: 13 December 1990
• Docket Number: No. 90-368,90-368
• Parties: 15 Fla. L. Weekly D2991 Edward Arnold BROYLES, Appellant, v. Leslie Virginia BROYLES, Appellee.
• Court: Florida District Court of Appeals

Page 357

573 So.2d 357

15 Fla. L. Weekly D2991

Edward Arnold BROYLES, Appellant, v. Leslie Virginia BROYLES, Appellee.

No. 90-368.

District Court of Appeal of Florida,

Fifth District.

Dec. 13, 1990.

Rehearing Denied Jan. 28, 1991.

Edward Arnold Broyles, Woodbridge, Va., pro se.

No Appearance, for appellee.

DAUKSCH, Judge.

This is an appeal from an order finding appellant/ex-husband in willful contempt of court for his failure to comply with an order incorporating a property settlement agreement. We reverse. Appellant also appeals the dismissal with prejudice of his request for declaratory relief, which we affirm.

On August 25, 1982, the parties executed a "Separation and Property Settlement Agreement." The settlement agreement was "approved, ratified, and confirmed in every respect and ... incorporated in and made a part of" the Final Judgment dissolving the parties' marriage and the parties were "ordered and required to fully comply with and perform the several acts required thereunder."

Paragraph 6 of the agreement provided in part that:

6. ... the Husband agrees to reimburse and indemnify the Wife for any and all payments made subsequent to the execution of this agreement for the Sun Bank lien encumbering said 1977 Plymouth Arrow.

Paragraph 7 of the agreement set forth bills and accounts for which the appellee assumed responsibility, including a Sun Bank automobile loan with a balance of approximately $907 for a total of $6,960.

Paragraph 9 provided that appellant agreed to pay $15,000 "as alimony" to appellee as follows:

(a) Husband agrees to pay to the Wife 20% of any annual earnings over $25,000.00 taxable income per year, beginning for the taxable year 1982. The Husband agrees to provide to the Wife a copy of his annual income tax returns filed with the Internal Revenue Service, including the 1982 return.

(b) In the event that the entire balance of $15,000.00 in alimony has not been fully paid to the Wife on or before June 30, 1989, the Husband agrees to entry of a judgment in favor of the Wife for a sum equal to the difference between $15,000.00 and the amount of alimony paid up to said date.

(c) The entire balance of $15,000.00 or any part thereof, may be prepaid to the Wife by the Husband at any time after the execution of this agreement.

(d) Any and all alimony payments, or any remaining balance to be paid in the form of alimony from the Husband to the Wife shall terminate upon remarriage by the Wife.

Paragraph 10 of the agreement provided for payment of $500 to Edmund T. Woolfolk, then appellee's attorney of record "to be applied to attorney's fees of the Wife."

On September 20, 1989, appellee filed a Motion for Contempt and a Notice of Hearing on the motion. The notice stated that appellee would seek a contempt order for appellant's failure "to pay the ordered alimony that was due on or before June 30, 1989, attorney fees and reimbursement of a bank loan." In her motion, appellee alleged an arrearage of $14,388 in alimony, an arrearage of $1,563 for the Sun Bank lien, and failure to pay $500 in attorney fees.

On October 10, 1989, appellant filed a response to appellee's motion. He admitted that $14,188 remained unpaid as of June 30, 1989, but stated that Paragraph 9 of the agreement provides specifically that a money judgment was the appropriate remedy. Appellant also admitted that payments had not been made for the Sun Bank lien, but argued that contempt was not available because the amount was a money debt. Appellant denied that payments had not been made for attorney fees.

On November 8, 1989, appellant filed a Request for Declaratory and Other Relief pursuant to Florida Rule of Civil Procedure 1.510 and Florida Statute 86.011. Appellant alleged:

10. The consideration underlying the promise of Respondent to pay the sum specified in Paragraph 9 and other sums of the agreement attached hereto was an adjustment of the parties' "respective property rights ... and financial obligations" and a general waiver by Petitioner of any interest in Respondent's property.

11. In 1983, Florida courts ruled that a law degree does not constitute "property" for the purpose of property distribution in a dissolution of marriage, even if earned during the course of the marriage, and that future earnings were likewise not subject to division or distribution as lump sum alimony or the like. The Fifth District Court of Appeal stated that no court could decree the same because it would amount to involuntary servitude by the degree holder spouse for the benefit of the non-degree holder.

Appellant stated he was unsure in view of the subsequent Florida court rulings as to whether the consideration given by appellee in return for appellant's promise to pay under Paragraph 9 of the settlement agreement failed because it was based "in large part" on what he alleged to be an unconstitutional claim or premise that appellee possessed a property interest in appellant's degree or earnings therefrom, or a right to an award of lump sum or other alimony as a result of the alleged support of appellee during law school.

On December 6, 1989, the trial court held a hearing on both the contempt motion and the appellee's motion to dismiss appellant's request for declaratory relief.

Appellee testified that her understanding was she was to get $15,000 in alimony and attorney fees under the agreement and that appellant was to pay a lien against a car owned by the parties. Appellee testified that she had paid the attorney fees of $500 and that she had paid the lien off. Appellee also testified that appellant had remitted the sum of $1,212 toward the alimony amount. Appellee acknowledged that the alimony amount was to be paid in installments and that amounts unpaid as of June 30, 1989 were to be the subject of a judgment. Paragraph 9-B, appellee testified, "was put in there that we could go back to court for judgment on any moneys that he still owed me since he was making installment payments over the last seven years." Appellee testified that appellant had not paid her anything on the $500 in attorney fees under the agreement. Appellee also testified that to the best of her knowledge, appellant was still employed as a government attorney, and not hospitalized or disabled.

On January 12, 1990, the trial court entered an order dismissing appellant's request for declaratory relief, calling appellant's motion "unfounded."

On January 17, 1990, an order on motion for contempt was filed adjudging the appellant to be in contempt of court and ordering appellant to pay over $21,000 to the appellee. The contempt order found, based on appellant's admissions, that his taxable income for years 1982-1988 was $196,401; that the alimony owed for those years was $10,220; and that the appellee had paid $1,212 of that sum to appellee. The court found, based on appellant's admissions of income, that appellant "had the ability to pay the court ordered lump sum alimony payments but failed or refused to do so" and found that the amount unpaid was $13,788, plus interest of $2,507.47. The trial court further found that the appellant had not paid any attorney fees and that he "had the ability to pay these attorney fees but failed or refused to do so." The trial court ordered the appellant to pay the sums ($16,795.47) by February 15, 1990 or to report to the Orange County Jail on February 19, 1990. The trial court also ordered the appellant to pay $3,131.70 for attorney's fees to the appellee by March 19, 1990 or to report to the same jail. Finally, the trial court ordered appellant to pay a lien reimbursement to the appellee of $1,563 and specified that if the appellant failed to pay the sums or to report to the county jail, a writ of attachment would issue.

Appellant argues the contempt order in the instant case is fundamentally defective in several particulars and we agree.

In Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985), the Supreme Court of Florida stated that 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." ... 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.

The Bowen court emphasized that once the court finds that a civil contempt has occurred and if incarceration is deemed appropriate, "the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order." 471 So.2d at 1279. Therefore, a finding of past ability to pay is insufficient.

The order on motion for contempt is defective because it lacks a separate, affirmative finding, as required by Bowen, that appellant has the present ability to pay the amounts specified in the order (i.e., $16,795.47 by February 15, 1990; $3,131.70 by March 19, 1990; and $1,563 by a date unspecified). The order contains only a finding he "had the ability to pay the court ordered lump sum alimony payments." This precise language (i.e. "had" ability to pay) has been held to be insufficient under the Bowen standard. Scapin v. Scapin, 553 So.2d 319 (Fla. 1st DCA 1989).

The order is also defective because it does not contain an express provision for purging any contempt after incarceration through payment of the ordered amounts. Civil contempt orders must always contain a provision permitting the contemnor to purge himself of his contempt by compliance with the court order he has disobeyed. See, e.g., Contella v. Contella, 557 So.2d 880 (Fla. 5th DCA 1990); Allman v. Johnson, 488...