Waskin v. Waskin, 84-371
| Decision Date | 19 June 1984 |
| Docket Number | No. 84-371,84-371 |
| Citation | 452 So.2d 999 |
| Parties | Robert R. WASKIN, Appellant, v. Gloria WASKIN, Appellee. |
| Court | Florida District Court of Appeals |
Schwartz, Klein, Steinhardt, Weiss & Weinstein, and Allen Sackrin, North Miami Beach, for appellant.
Bercuson, Cahan, Weksler & Lasky, and Bernard Weksler, Miami, for appellee.
Before HUBBART, FERGUSON and JORGENSON, JJ.
The parties were divorced in 1976. Several years later, petitioner/ex-wife filed a motion for contempt, alleging that respondent/ex-husband had willfully disobeyed a court order for payment of alimony and support. Respondent claimed that he was unable to meet his support obligations because of heavy expenses incurred in defending himself against criminal charges. He was awaiting trial on a charge of conspiring to murder the petitioner.
At the contempt proceedings petitioner called respondent as an adverse witness and asked respondent whether he had in fact conspired to have her killed, thereby seeking to avoid the support obligation imposed by the court. Respondent refused to answer, asserting a fifth amendment privilege. Petitioner thereupon moved to strike all of respondent's testimony. The court granted the motion, refused to allow a proffer of respondent's additional testimony, and refused to continue the hearing. The court then adjudged respondent in contempt and sentenced him to thirty days in jail. He appeals.
Petitioner contends here that her inquiry was relevant to show that respondent voluntarily created the condition which hampered his ability to comply with the court's order. In a contempt proceeding for failure to comply with a support order, the party in default has the burden of proving both (1) that he is unable to comply with the court's order to pay, and (2) that his inability to pay is not due to his fault or neglect but instead to circumstances beyond his control. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976); Yandell v. Yandell, 160 Fla. 164, 33 So.2d 869 (1948); Orr v. Orr, 141 Fla. 112, 192 So. 466 (1939). In order to satisfy his burden in this case, respondent was required to dispel the inference that he was in willful noncompliance with the support order, by showing that he did not conspire to kill the petitioner.
In State v. Buchman, 361 So.2d 692, 695 (Fla.1978), our supreme court opined that the right against self-incrimination "has never been held to be violated by the availability of a defense, the...
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