June 17, 2014

Bresky Law Wins Rehearing of Order Holding Former Husband in Contempt for Failure to Pay Alimony

Bresky Law Wins Rehearing of Order Holding Former Husband in Contempt for Failure to Pay Alimony

Bresky Law recently succeeded on a motion for rehearing of an order that had held our client in contempt for failure to pay alimony. The parties’ marriage was dissolved in 2009. In early 2012, the former wife filed a motion for contempt regarding our client’s non-payment of alimony.

The general magistrate held a hearing on the motion and issued a report recommending that our client be held in contempt. The circuit court approved the magistrate’s report, incorporated the magistrate’s findings, and found our client had wilfully refused to comply. The circuit court granted the former wife’s motion for contempt. Specifically, the circuit court found that our client could pay the $15,432 contempt purge amount from $10,000 cash that he was found to have on hand and a baseball card collection worth $5,000. The court also ordered our client to pay $2,000 per month until the entire alimony arrearage was paid.

We filed a motion for rehearing arguing that the court’s order was not based on an actual present ability to pay. We also argued that the $10,000 could not be used as a basis for finding an ability to pay, when the cash was the joint property of our client and his current wife. We maintained that the court’s finding violated the principle that a finding of ability to pay must generally be based upon the contemnor’s assets and not those of his or her family members. Russell v. Russell, 559 So. 2d 675, 676 (Fla. 3d DCA 1990). The court held a hearing at which our firm, along with co-counsel, explained on behalf of our client why the court’s order holding him in contempt was in error.

The court agreed with our position and rendered a written order granting our client’s motion for rehearing. The court vacated its prior order that had granted the former wife’s motion for contempt, and remanded the matter to the magistrate for further proceedings. This positive outcome undid the order of contempt and prevented our client from being jailed for failure to pay an alimony award that he could not afford to pay.