LeNeve v. Navarro, 90-1747
| Citation | 565 So.2d 836 |
| Decision Date | 08 August 1990 |
| Docket Number | No. 90-1747,90-1747 |
| Parties | 15 Fla. L. Weekly D2027 William Lawrence (Larry) LeNEVE, Petitioner, v. Nick NAVARRO, Sheriff of Broward County, Respondent. |
| Court | Florida District Court of Appeals |
William Lawrence LeNeve, Fort Lauderdale, pro se.
Renee LeNeve, Fort Lauderdale, pro se.
The trial court found petitioner in civil contempt for failure to pay child support and alimony and directed that he be incarcerated for 120 days absent payment of a purge amount of $5,060.00. Petitioner now contends that the order was improper because no evidence was presented that petitioner has the present ability to pay the purge amount. We agree.
In Bowen v. Bowen, 471 So.2d 1274, 1277-78 (Fla.1985), the supreme court held that incarceration cannot be imposed upon a civil contemnor who lacks the ability to pay the purge amount, and expressly receded from any language in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976), which could be construed to state otherwise. See also Knowles v. Knowles, 522 So.2d 477, 479 (Fla. 5th DCA), rev. denied, 531 So.2d 1354 (Fla.1988), where the court stated:
To incarcerate a person for civil contempt for failure to pay money as ordered, a court must not only provide for a purge condition but must also find that the person has the ability to purge himself of civil contempt. Even a person who has willfully or negligently divested himself of the ability to pay money as ordered cannot be incarcerated for civil contempt because he then does not have the ability to purge himself.
(Emphasis added).
The trial court in the instant case found that petitioner has the present ability to pay the purge amount because: (1) petitioner failed to make any support payments since May 1989, (2) petitioner is self-employed with little income, (3) petitioner is being supported by friends and family, and (4) petitioner is a licensed real estate broker. In our view, these four findings do not establish that petitioner has the ability to immediately pay $5,060.00. Furthermore, H.R.S. presented no evidence at the hearing below which indicated that petitioner has the present ability or assets to pay $5,060.00. On the contrary, petitioner testified that for the past year and a half he has been attempting to develop a business but has not earned any income, that he has been living in the home of a former business associate, that he eats most of his meals at his parents' home, that he had to borrow a car to drive to the hearing, and that he had no money with him.
During the hearing the trial court stated that petitioner had willfully failed to devote himself to employment that would enable him to pay the court-ordered support. Although this fact might support a finding of criminal contempt, it does not justify a conclusion that petitioner has the present ability to pay the purge amount....
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Pace v. Pace
...to support a finding that the party has the present ability to pay a support obligation for contempt purposes. LeNeve v. Navarro , 565 So. 2d 836, 837 (Fla. 4th DCA 1990).Because Appellant submitted undisputed evidence that he lacked the present ability to pay these purge amounts, we must r......
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Galligher v. Galligher, 94-1333
...April, 1994. He apparently had the ability to pay only because of his severance pay, which ended in April, 1994. In LeNeve v. Navarro, 565 So.2d 836 (Fla. 4th DCA 1990), we held, consistent with Bowen v. Bowen, 471 So.2d 1274, 1277-78 (Fla.1985), that incarceration cannot be imposed upon a ......
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