Faircloth v. Faircloth

• Decision Date: 18 November 1976
• Docket Number: No. 48368,48368
• Citation: 339 So.2d 650
• Parties: Richard L. K. FAIRCLOTH, Petitioner, v. Barbara Hall FAIRCLOTH, Respondent.
• Court: Florida Supreme Court

Page 650

339 So.2d 650

Richard L. K. FAIRCLOTH, Petitioner, v. Barbara Hall FAIRCLOTH, Respondent.

No. 48368.

Supreme Court of Florida.

Nov. 18, 1976.

John S. Winnie of Winnie, Winnie & Uhrig, Gainesville, for petitioner.

Peter Enwall of Enwall & Silverman, Gainesville, for respondent.

ROBERTS, Justice.

We have for review by petition for certiorari granted the decision of the District Court of Appeal, First District, in Faircloth v. Faircloth, reported at 321 So.2d 87 (Fla.App. 1, 1975), which conflcits with this Court's decision in State ex rel. Trezevant v. McLeod, 126 Fla. 229, 170 So. 735 (1936), and the decision of the District Court of Appeal, Third District, in Ratner v. Ratner, 297 So.2d 344 (Fla.App. 3, 1974), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

The final judgment of dissolution of marriage between respondent and petitioner ordered that petitioner pay monthly child support of $200, one-half of the mortgage payments, taxes and assessments on the marital home, and provide maintenance thereof, that he pay lump sum alimony in the amount of $2,070.79 over an 18-month period together with attorney's fees of $1,500 to be paid in 12 monthly installments. Upon appeal, this final judgment was affirmed.

Subsequently, a petition and motion for adjudging petitioner in contempt of court for failure to abide by the final judgment or marriage dissolution was filed. Contempt hearing was held on September 30, 1975 (22 1/2 months after final judgment of dissolution) at which evidence was adduced showing that none of the lump sum alimony had been paid nor had appellant made any contribution toward the mortgage, taxes, assessments or maintenance of the marital home; that petitioner was $930 in arrears in child support payments and had paid nothing on attorney's fees; that petitioner conveyed his undivided one-half interest in the marital home to a third person putting it beyond reach for satisfying his obligations under the final judgment. Furthermore, appellant had made no attempt to secure modification of the final judgment.

The trial court entered an order adjudging petitioner to be in contempt and stated in pertinent part:

'1. Respondent, Richard L. K. Faircloth, is in willful contempt of this Court for his failure to abide by the Final Judgment of Marriage Dissolution in that he is in arrears in certain financial obligations pursuant to that Final Judgment in excess of Four Thousand Three Hundred Dollars ($4,300.00).

'2. This Court, therefore, finds the Respondent in said willful contempt; and as punishment therefore, sentences him to the full term and period of five (5) months and twenty-nine (29) days in the Alachua County Adult Detention Center; PROVIDED, HOWEVER, commitment shall be withheld for ten (10) days and the Respondent may continue at liberty and PROVIDED, FURTHER, That he may purge himself at any time of said contempt by paying the said sum of $4,300.00.' (Emphasis supplied.)

The judgment of contempt was appealed to the District Court. Inter alia, petitioner therein argued that the trial court erred in finding him in contempt without making an express finding that petitioner had the present ability to pay the $4,300 required. The District Court affirmed relative to the issues raised on certiorari to this Court and found:

'Appellant has cited no authority and we know of none requiring appointement of counsel for an indigent charged with civil contempt. . . .

'Appellant next contends that a contempt commitment for failure to obey a court order must reveal on its face an affirmative finding that the contemnor had the ability to obey the order or that his inability was brought upon himself due to his own fault. He states that the court made no evidentiary finding regarding his ability to pay, ignored his assertions that he had no money or assets, and ignored his offer to bring in financial records. Appellee contends that once she established the arrearage, it then became appellant's burden to prove that he was unable to pay through circumstances beyond his control (citing Naster v. Naster, Fla., 163 So.2d 264); that appellant's bare assertions that he was unable to pay were insufficient; that while appellant offered to produce financial records, he did not bring any to the hearing and produced no evidence to substantiate his claims. We agree.

'In the case sub judice, although the record may not show that appellant has the present ability to immediately pay the full amount of the arrearage, the final judgment, which was appealed and affirmed, stands inviolate that he had the ability to comply with its requirements at the time it was entered. In addition, he has made no evidentiary showing of a subsequent liability to comply with it nor has he shown that any inability which he may have had was not caused by his own neglect or misconduct. To the contrary, the record shows otherwise--that he disposed of his 1/2 interest in the marital home.'

We disagree with the District Court of Appeal, First District, insofar as it has determined that the trial court may forgo an express finding that petitioner had the present ability to comply with the order of the trial court. 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.

This Court expressly stated in State ex rel....