Martyak v. Martyak, 4D03-2077.
| Decision Date | 14 April 2004 |
| Docket Number | No. 4D03-2077.,4D03-2077. |
| Parties | Stephen MARTYAK, Appellant, v. Judith MARTYAK, Appellee. |
| Court | Florida District Court of Appeals |
John N. Buso, West Palm Beach, for appellant.
No brief filed for appellee.
This appeal arises from a final order finding Stephen N. Martyak in contempt for failing to pay alimony and ordering that he be taken into custody until he pays a purge amount of $19,977.60. Martyak raises four issues on appeal. We find three to be without merit and write only to discuss the claimed invalidity of the contempt order. For the reasons outlined below, we reverse the order of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.
On appeal Martyak contends his due process rights were violated by the court's failure to admit any evidence on his ability to purge the arrearages before entering the contempt order. We agree.
The final judgment of dissolution entered June 24, 1991, ordered Martyak to pay $4,000 in monthly alimony. That judgment created a presumption, in subsequent proceedings, that Martyak had the ability to pay that amount. Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985). To overcome this presumption, the burden fell on Martyak. He could "dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations." Id. at 1279. The Bowen opinion went on to explain:
Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. 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.
Id. (Emphasis added.)
In discussing the two step analysis of Bowen, this court has previously clarified that "the presumption of ability to pay which exists in the first step is not a substitute for the separate, affirmative finding of ability to pay required for incarceration." Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997) (internal quotations omitted).
Martyak points to Cleveland v. Cleveland, 841 So.2d 648 (Fla. 4th DCA 2003). Cleveland relied on Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002), where this court reversed a contempt order that failed to meet the requirements of the Florida Family Rules of Procedure. In Vazquez we held:
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Martyak v. Martyak, 04-80782-CIV-ZLOCH.
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...the court. A final judgment to pay alimony carries with it a presumption that the payor is currently able to do so. Martyak v. Martyak, 873 So.2d 405 (Fla. 4th DCA 2004) (holding that final judgment ordering $4,000 in monthly alimony created presumption in subsequent proceedings that husban......
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