Sibley v. Sibley

• Citation: 833 So.2d 847
• Decision Date: 23 December 2002
• Docket Number: No. 3D02-3171.,3D02-3171.
• Parties: Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.
• Court: Florida District Court of Appeals

833 So.2d 847

Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.

No. 3D02-3171.

District Court of Appeal of Florida, Third District.

December 23, 2002.

Billbrough & Marks and G. Bart Billbrough, for appellant.

Jay M. Levy; Bette E. Quiat, Miami, for appellee.

Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.

SCHWARTZ, Chief Judge.

The primary point of the appellant, who is incarcerated for indirect contempt because he failed to discharge an obligation for a large amount of admittedly past due child support—of which he has paid not a single cent—is that the record does not support the express finding below¹ that he has the present ability to pay the purge amount of $100,000.00. We disagree.

We do so because, as the record demonstrates Sibley may command, simply by asking, the payment of the purge amount through his very wealthy father² —who has in effect given many hundreds of thousands of dollars to Mr. Sibley for any and every purpose except the discharge of this particular obligation. Among these are the payment of $250,000.00 cash for a business which nominally supports him, $200,000.00 in the "forgiveness" of a "loan" from the father, and large sums directly for the support of the appellant's present wife³ and his other child. We are convinced that they include also very substantial sums in legal fees and costs in order to avoid payment,⁴ as well as the maintenance of the present expensive proceeding to secure his release from prison without having to meet his adjudicated duty to support these children, even in the smallest part. His failure to do so stems, as the record again shows, and as the trial judge observed, only from a stubborn, self-immolating hatred of and vendetta against his ex-wife, who also happens to be the mother of their children, and not from any "inability to pay." In these circumstances, which demonstrate the very epitome of a wilful, contemptuous refusal to obey a binding order of court, the rule that all sums from whatever source available to the contemnor-obligor must be considered to determine his "ability to pay" is peculiarly relevant. Koll v. Koll, 812 So.2d 529 (Fla. 4th DCA 2002); Mallardi v. Jenne, 721 So.2d 380 (Fla. 4th DCA 1998); Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997); Rose v. Ford, 831 So.2d 763,(Fla. 4th DCA 2002)(dictum); see also Klein v. Klein, 122 So.2d 205 (Fla. 3d DCA 1960); Silvers v. Silvers, 274 So.2d 555 (Fla. 3d DCA 1973); Silberman v. Silberman, 670 So.2d 1109 (Fla. 3d DCA 1996). Its application compels the rejection of the appellant's argument that, on the merits, he should not be in jail for civil contempt. In our judgment, he is in the right place for the right reason.⁵

Affirmed.

GODERICH, J., concurs.

COPE, J., (dissenting).

The incarceration order was entered on the theory that the former husband, Montgomery Blair Sibley, has sufficient personal property to sell so as to obtain the $100,000 purge amount. As the record does not adequately support that proposition, we should remand to set a proper purge condition.

I.

The parties divorced in 1994. The former husband was the primary residential parent. Both parents lived in the Miami area.

It was agreed by the parties that if the former husband moved away, the three children of the marriage would remain in the Miami area with Barbara Sibley, the former wife. In that event, the former husband was to pay child support of $4,000 per month.⁶

The former husband is a member of The Florida Bar who practiced law in Miami. Subsequent to the divorce, the former husband remarried. In 2000, the former husband moved to Maryland. This triggered the obligation to pay $4,000 per month in child support.

The former husband never paid any of the child support. After protracted enforcement proceedings in the trial court in which the former husband represented himself,⁷ the trial court entered a civil contempt order providing for the incarceration of the husband. The purge amount was set at $100,000.

The former husband has appealed. By unpublished order, this court ruled that the former husband could obtain a stay of the order pending appeal by posting a $100,000 bond. The former husband has not posted the bond and is incarcerated.

II.

It seems to me that in footnote two of the majority opinion, the majority concedes the point which requires reversal. Footnote two states that the former husband has "substantial assets, although admittedly not in the purge amount, in his own name." Majority opinion at 848 n. 2 (emphasis added).

The incarceration order in this case was entered precisely on the theory that the former husband does have $100,000 in assets in his personal possession with which to satisfy the purge amount. The majority opinion concedes that the record does not adequately support the trial court's view of the matter.

The former wife testified that the former husband received in the dissolution of marriage various items of silver and artwork. She placed a value of $10,000 on one silver tray, but the record contains no valuation of any of the other items, and there is a dispute about the former husband's continuing ownership of some of the items.

Under Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), the court must determine whether the contemnor possesses the ability to pay the purge amount. Id. at 1279. In making this determination, "the trial court is not limited to the amount of cash immediately available to the contemnor; rather the court may look to all assets from which the amount might be obtained." Id. (emphasis in original).

In the present situation, the trial court has at least two alternatives. One is to obtain reasonable estimates of value of the items which remain in the former husband's possession. Because the property is in Maryland, the distance and expense of appraisal may make this an unattractive alternative.

The speedier alternative would be to modify the purge condition to allow release of the former husband upon turnover of the assets to a proper agent for the wife in Maryland. The wife would then be required to sell those items of personal property in a commercially reasonable manner. This approach would avoid the delay and expense of appraisal.

While the trial court's order does not say in so many words that the $100,000 purge amount was supposed to come from the personal property of the former husband, that is the only reasonable interpretation of the order.⁸ Further, in her brief in this court, the former wife has defended the order on the theory that the former husband has sufficient assets to pay the purge amount. The former wife makes reference to the assets of the former husband's father—Harper Sibley, Jr.—only in passing in a footnote. Appellee's brief at 20 n. 12.

We should reverse the incarceration order and remand for the trial court to enter a revised purge condition, which the former husband would have the present ability to satisfy.

III.

The majority opinion takes the position that the former husband should obtain the purge amount from his father, Harper Sibley, Jr. This was not the basis of the trial court's ruling. In ruling as it has, the majority opinion relies on the "tipsy coachman" doctrine, or "right for the wrong reason" rule.

The Florida Supreme Court has said:

[Respondent] attempts to invoke the "tipsy coachman" doctrine, which permits a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons so long as "there is any basis which would support the judgment in the record." Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

As this Court recently reiterated in Robertson v. State, 829 So.2d 901 (Fla. 2002), the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law. See Robertson v. State, 829 So.2d 901, 907; see also State Dept. of Revenue ex rel. Rochell v. Morris, 736 So.2d 41, 42 (Fla. 1st DCA 1999). On that basis, the doctrine cannot be applied in this case because the record does not provide an adequate basis for us to reach such materiality conclusion as a pure matter of law.

State Farm Fire and Cas. Co. v. Levine, No. SC01-2085, at 4-5, ___ So.2d ___, 2002 WL 31833886 (Fla. Dec. 19, 2002).

In the present case the trial court heard testimony from the former husband's father, Harper Sibley, Jr., in July 2002. The trial court limited the inquiry to two specific issues: the fact that Mr. Sibley had stopped paying the tuition for the grandchildren (the children of this marriage), and what gifts or property he had given to the former husband.

It is telling that the trial court itself restricted the amount of inquiry which could be made of Mr. Sibley, and after hearing the testimony, did not base the purge amount on Mr. Sibley's ability to pay. The trial court fashioned the contempt order and purge amount based on the trial court's conclusions regarding the former husband's ability to pay.

If there is a theory on which Mr. Sibley can be considered a source of funds to satisfy the purge condition, then proper procedure requires that issue to be first addressed in the trial court.

With regard to the merits, there is no question but that over the years, the former husband, the former wife, and the children of the marriage all enjoyed large gifts from Mr. Sibley. As a general proposition, however, this court has rejected the idea that the availability of loans or gifts from wealthy relatives translates into the present ability to pay a purge amount.

The former husband relies on Perez v. Perez, 599 So.2d 682 (Fla. 3d DCA 1992), which said:

The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). Where incarceration is under consideration as a possible remedy for a civil contempt, there must be "a separate, affirmative finding that

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