CARTER v. HART (2020)

Kevin Carter appeals an order denying his amended petition for modification of alimony and granting his former wife's motion for civil contempt for his failure to pay alimony. We affirm, without discussion, the denial of the petition for modification. We affirm the trial court's contempt order to the extent it found that Carter had the ability to pay his alimony obligation, but willfully failed to do so. However, we reverse the contempt order to the extent that it required Carter to pay a purge amount of $6000.

Incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself or herself of contempt. Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla. 1985). That finding must be supported by competent, substantial evidence. Elliott v. Bradshaw, 59 So. 3d 1182, 1185–86 (Fla. 4th DCA 2011).

Here, in determining the purge amount, the trial court gave considerable weight to its (mistaken) belief that Carter had testified at an earlier hearing that his motorcycle had “$6000 equity.” However the record reflects that at both the prior hearing and at the hearing on the motion for contempt, Carter testified that the loan balance on his motorcycle exceeded the value of the motorcycle. No contrary evidence was presented to the trial court. As a result, we conclude that the court's finding of a present ability to pay the purge amount was not supported by competent, substantial evidence. See Shoemaker v. Shoemaker, 567 So. 2d 975, 976 (Fla. 1st DCA 1990) (“While our review of the record reveals an adequate basis for the trial court's adjudication of contempt, we find an absence of competent, substantial evidence revealing that the former husband had the present ability to pay the purge amount.”).

This opinion should not be construed as limiting the trial court's ability, after a new evidentiary hearing, to establish a different purge provision, See Elliott, 59 So. 3d at 1187, or, alternatively, to utilize other means to obtain compliance with its order. See Bowen, 471 So. 2d at 1279 (“Although incarceration cannot be used as means to seek compliance with a court order when the contemnor does not have the ability to purge himself of contempt, the court does have available other means to obtain compliance.”).

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

EVANDER, C.J.

EISNAUGLE and SASSO, JJ., concur.