Martyak v. Martyak, 4D03-4711.
| Decision Date | 18 August 2004 |
| Docket Number | No. 4D03-4711.,4D03-4711. |
| Citation | 881 So.2d 48 |
| Parties | Stephen N. MARTYAK, Appellant, v. Judith A. MARTYAK, Appellee. |
| Court | Florida District Court of Appeals |
John N. Buso of John N. Buso, P.A., West Palm Beach, for appellant.
Martin H. Colin of the Law Offices of Martin H. Colin, Lake Worth, for appellee.
Stephen N. Martyak appeals an order holding him in contempt for failing to pay alimony and attorney's fees previously ordered, and ordering that he be taken into custody until he pays a purge amount of $54,278.91, the entire arrearage at the time the order was entered. As we found in his prior appeal from a prior contempt order, which was pending when the order on appeal in this case was entered, there was no error in holding him in contempt. However, the order requiring his incarceration must be reversed because it fails to contain a finding of his present ability to pay the purge amount and the basis for such ability. See Martyak v. Martyak, 873 So.2d 405, 407 (Fla. 4th DCA 2004)
; Fla. Fam. L.R.P. 12.615(e).1 The other issues presented in this appeal were either not raised below and unpreserved or rejected in his prior appeal.
In the present case, the trial court was unable to make a finding of present ability to pay the purge because the former husband did not appear at the contempt hearing. He presented no evidence whatsoever as to his ability to pay. The former wife complains that she did all that she could. If the former husband can escape incarceration simply by not appearing at his contempt hearing, that defeats the holding in Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), which requires the defaulting party to produce evidence to dispel the presumption of ability to pay.
The applicable Family Law Rule of Procedure provides the remedy in cases like this one. When a party is served a motion for contempt, the notice of hearing is required to contain the following language:
FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.
Fla. Fam. L.R.P. 12.615(b). Neither party has supplied this court with a copy of the notice of hearing filed in connection with the instant contempt proceeding, so it is not clear whether this requirement was met.
At a contempt hearing, once the prior order requiring payment and the obligor's failure to pay are established — as they were in this case — the trial court proceeds differently depending upon whether or not the alleged contemnor is present for the hearing. If the alleged contemnor is present, the court is to determine whether ...
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Martyak v. Martyak, 04-80782-CIV-ZLOCH.
...custody until such time as his arrearage was paid. See Martyak v. Martyak, 873 So.2d 405 (Fla.Dist.Ct.App.2004) and Martyak v. Martyak, 881 So.2d 48 (Fla.Dist.Ct.App.2004). Mr. Martyak initiated the above-styled cause on August 23, 2005 by filing a Notice of Removal (DE 1) and a Complaint (......
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Woolf v. Woolf, Case No. 4D04-3403 (FL 3/9/2005), Case No. 4D04-3403.
...serves as a predicate for the issuance of a writ of bodily attachment should the alleged contemnor not appear. See Martyak v. Martyak, 881 So. 2d 48, 49-50 (Fla. 4th DCA 2004). This language was not contained in the "notice of hearing" in this case (i.e., the order which stated that contemp......
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Woolf v. Woolf, 4D04-3403.
...serves as a predicate for the issuance of a writ of bodily attachment should the alleged contemnor not appear. See Martyak v. Martyak, 881 So.2d 48, 49-50 (Fla. 4th DCA 2004). This language was not contained in the "notice of hearing" in this case (i.e., the order which stated that contempt......
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Carter v. Hart, Case No. 5D17–1189
...was provided to Former Husband in any notice of hearing. Regardless, Former Husband is not entitled to relief. In Martyak v. Martyak , 881 So.2d 48 (Fla. 4th DCA 2004), the Fourth District explained that at a civil contempt hearing, the trial court proceeds differently depending upon whethe......
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Attorneys' fees and costs
...action may be enforced by contempt. The entry of a money judgment does not preclude enforcement by contempt. [ Martyak v. Martyak, 881 So. 2d 48 (Fla. 4th DCA 2004) (although court properly held husband in contempt for failure to pay fees, court erred in ordering that he be incarcerated unt......
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Enforcement of orders and judgments
...such a finding, in contempt proceeding for failure to pay alimony, where court imposed incarceration as sanction. • Martyak v. Martyak, 881 So. 2d 48 (Fla. 4th DCA 2004). Order finding former husband to be in contempt for failure to pay previously ordered alimony and attorney fees could not......