POE v. POE (2002)

Steven Poe appeals the circuit court's post-judgment order finding him in contempt for failure to pay alimony and awarding his wife her attorney's fees in connection with said proceeding.   We affirm without comment the lower court's contempt finding and its order requiring the immediate incarceration of Mr. Poe, until such contempt was purged by the payment of his support arrearages in full. We also affirm the lower court's award of the wife's attorney's fees as an appropriate sanction where Mr. Poe's conduct was found frivolous.  Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990).

 However, we reverse that portion of the order which requires Mr. Poe to timely make future support payments as they come due as an additional purge condition.   In a civil contempt proceeding the contemnor must have the present ability to pay the purge amount.   Accordingly, a contemnor cannot be required to pay amounts not yet due in order to purge himself of contempt.   Roberts v. Roberts, 328 So.2d 461, 462 (Fla. 4th DCA 1976).

Hence, we affirm the lower court's contempt finding and award of attorney's fees.   We reverse and remand with directions for the circuit court to strike that portion of the contempt order which requires as a purge provision the timely payment of future support obligations as they come due.

AFFIRMED in part;  REVERSED in part, and REMANDED with instructions.

POLEN, C.J.

HAZOURI and MAY, JJ., concur.