NEIRA v. ACOSTA (2026)

Juan Pablo Fuentes Neira (“the Husband”) appeals the trial court's September 4, 2025 Amended Order Granting Wife's Second Contempt Motion (“Amended Second Contempt Order”). Because the order imposed a criminal contempt sanction without identifying the source from which the Husband could have obtained the funds to satisfy the purge amount, we reverse.

The Husband and Lina Marcela Cardona Acosta (“the Wife”) were married on June 4, 2020. They had a son, born in 2020. The Wife petitioned for dissolution of marriage in September 2024 and later moved for temporary support and child support.

In January 2025 after a two-day hearing, the trial court granted the Wife's motion for temporary support in full, and on February 19, 2025, entered a temporary relief order. The court found that the Husband earned at least $24,023.25 net per month and used that amount to determine his ability to pay temporary support and child support, as well as arrearages. The court found the Husband had the ability to pay, and the Wife had a need for temporary support of $9,000 per month. It further found the Husband had child support arrears of $59,738, payable at the rate of $3,000 per month; ordered the Husband to pay $382 per month in base child support; and found the Husband owed $27,000 in retroactive child support, payable at the rate of $1,000 per month.

The Husband moved to vacate and for reconsideration and rehearing. On February 24, 2025, the Wife filed an Urgent Motion for Contempt due to the Husband's failure to pay what the trial court ordered for support in its February 19 order. Following a March 13, 2025 hearing on the Wife's motion, the trial court entered an order on March 27, 2025, granting the motion; finding the Husband in contempt; finding him not credible; determining he failed to show an inability to comply with the February 19, 2025 order; and directing him to pay $12,852 to the Wife. The court ordered that if the $12,852 owed to the Wife was not paid by March 27, 2025, the husband would be incarcerated.

On April 4, 2025, the Wife filed a second urgent motion for contempt, alleging the Husband again failed to comply with the February 19 temporary support order. She alleged that although the Husband delivered a $12,852 check to her counsel on March 20, 2025, the Husband made no further payments.

On July 21, 2025, the Wife filed a supplemental second urgent motion for contempt, incorporating her April 4th motion. She alleged that the Husband had not paid the support required for April 15 through July 15.

After an August 7, 2025, hearing on the Wife's second and supplemental urgent motions for contempt, the trial court entered an August 8, 2025 order granting both motions. The court found the Husband not credible; not in compliance with the February 19, 2025 temporary support order; and able to pay the $65,511 purge amount. The trial court ordered payment by August 11, 2025 at 12:00 p.m. and required the Husband to surrender himself for incarceration at that hearing should he fail to pay.

On September 4, 2025, trial court entered an Amended Order Granting Wife's Second Urgent Motion for Contempt and the Wife's Supplemental Second Urgent Motion for Contempt and vacating the August 8, 2025 order (“Amended Second Contempt Order”). The court found the Husband had been adjudicated guilty of indirect civil contempt of court. The court further found the Husband failed to comply with the February 19 temporary support order and had the present ability to pay the $65,115.00 purge amount. In the order, the trial court further stated, “The Court finds the Husband's testimony that he receives significant funds from his family members and business associates lacks credibility.” The trial court did not make any affirmative findings identifying the source of funds the Husband could use to satisfy the purge amount. The court ordered the Husband to pay by September 10, 2025 at 12:00 p.m. and required the Husband to surrender at the September 10, 2025 hearing if he failed to pay.

At the September 10 hearing, defense counsel argued that the court was required to conduct a hearing as required by the Florida Supreme Court. The trial court responded that contempt and ability to pay findings had already been made and that the September 4, 2025 order required the Husband to appear to surrender. Defense counsel advised that the Husband had partially paid the purge amount, but the court found he had not paid the full amount and ordered the Husband taken into custody. While incarcerated, on Friday September 12, 2025, the husband demanded a present ability to pay hearing within 48 hours, as required by rule 12.615(e). The Husband was released on September 15, 2025.

The trial court held the purge hearing on September 17, 2025. The Wife presented no witnesses or evidence. The Husband presented testimony from his forensic accountant. The accountant testified he reviewed the Husband's personal bank accounts, tax filings, and company records and calculated gross monthly income of $5,674 ($4,000 in wages and approximately $1,000 in rental distributions). He further testified the Husband could not pay temporary support from business assets because he held only a nominal partnership interest with non-parties, and the real property assets could not be liquidated. The accountant further testified the Husband had no available assets or income from which to pay the $65,115 purge amount.

The Husband testified he had no ability to pay and that any assets associated with his family's businesses were held by separate legal entities or frozen under existing court orders. The Husband's cousin testified that he lent the Husband approximately $100,000 to cover legal and professional fees, at 7% interest, and that he had borrowed those funds himself to make the loan to the Husband.

The trial court made no oral findings and took the matter under advisement. Later that evening, on September 17, it entered an Order on Purge Hearing. The court found that the Husband had the present ability to pay the $65,511 purge amount.

On September 18, 2025, the Husband moved to disqualify the trial judge. That same day at the surrender hearing, the trial court did not address the disqualification motion and addressed only the surrender issue. Because the Husband had not paid the purge amount, the trial court ordered the Husband's reincarceration the same day.¹ The Husband now appeals.

The Husband argues that the Amended Second Contempt Order must be reversed because the trial court did not have evidence that the Husband had funds to pay the purge provision.² We agree.

Contempt orders are generally reviewed for abuse of discretion, but whether the court complied with due process is reviewed de novo. Phanord v. Phanord, 411 So. 3d 568, 569 n. 2 (Fla. 3d DCA 2025) (citation omitted). Florida Family Law Rule 12.615, “Civil Contempt in Support Matters,” governs family law civil contempt proceedings used to obtain compliance with an order of the court. Rule 12.615(c)-(e) provides:

(c) Hearing. In any civil contempt hearing, after the court makes an express finding that the alleged contemnor had notice of the motion and hearing:

(1) the court shall determine whether the movant has established that a prior order directing payment of support was entered and that the alleged contemnor has failed to pay all or part of the support set forth in the prior order; and

(2) if the court finds the movant has established all of the requirements in subdivision (c)(1) of this rule, the court shall,

(A) if the alleged contemnor is present, determine whether the alleged contemnor had the present ability to pay support and willfully failed to pay such support.

(B) if the alleged contemnor fails to appear, set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment and direct that, upon execution of the writ of bodily attachment, the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.

(d) Order and Sanctions. After hearing the testimony and evidence presented, the court shall enter a written order granting or denying the motion for contempt.

(1) An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged contemnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based.

(2) If the court grants the motion for contempt, the court may impose appropriate sanctions to obtain compliance with the order including incarceration, attorneys’ fees, suit money and costs, compensatory or coercive fines, and any other coercive sanction or relief permitted by law provided the order includes a purge provision as set forth in subdivision (e) of this rule.

(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor's present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. The court may grant the contemnor a reasonable time to comply with the purge conditions. If the court orders incarceration but defers incarceration for more than 48 hours to allow the contemnor a reasonable time to comply with the purge conditions, and the contemnor fails to comply within the time provided, the movant shall file an affidavit of noncompliance with the court. If payment is being made through the Central Governmental Depository, a certificate from the depository shall be attached to the affidavit. The court then may issue a writ of bodily attachment. Upon incarceration, the contemnor must be brought before the court within 48 hours for a determination of whether the contemnor continues to have the present ability to pay the purge.

Under this rule, the trial court must make express written findings that 1) the contemnor failed to pay support established in an earlier order, and 2) the contemnor had the present ability to pay and willfully did not pay. Vazquez v. Vazquez, 827 So. 2d 384, 384-85 (Fla. 4th DCA 2002). In addition, any contempt order imposing incarceration must also include a purge provision based on the contemnor's present ability to pay. Fla. Fam. L. R. P. 12.615(e). Importantly, the purge provision must be supported by a factual basis identifying the source of funds the contemnor can use to pay. Vazquez, 827 So. 2d at 385. The trial court must consider “the contemnor's own assets, not those of his relatives.” Russell v. Russell, 559 So. 2d 675, 676 (Fla. 3d DCA 1990) (citing Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985)); see also Nation v. Boling, 206 So. 3d 810, 813 (Fla. 1st DCA 2016) (citing Breitenbach v. Breitenbach, 838 So. 2d 1266, 1268 (Fla. 2d DCA 2003)); Perez v. Perez, 599 So. 2d 682, 683 (Fla. 3d DCA 1992); Keeler v. Keeler, 66 So. 3d 1081, 1081 (Fla. 3d DCA 2011).

When incarceration is imposed as a contempt sanction, the court must make “a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.” Perez v. Borga, 283 So. 3d 815, 816 (Fla. 4th DCA 2019) (quoting Ramirez v. Ramirez, 84 So. 3d 434, 435 (Fla. 4th DCA 2012) (quoting Fla. Fam. L. R. P. 12.615(e))). Further, “the presumption of ability to pay which attaches at the initial part of the contempt proceedings ‘is not a substitute for the separate, affirmative finding of ability to pay required for incarceration.’ ” Borga, 283 So. 3d at 816 (quoting Pompey v. Cochran, 685 So. 2d 1007, 1014 (Fla. 4th DCA 1997)). The presumption may be rebutted at a later hearing. Cleveland v. Cleveland, 841 So. 2d 648, 649 (Fla. 4th DCA 2003).

Before a court may find that the failure to pay was willful, the movant must first show that the contemnor has the ability to pay. Huerta v. Grajales, 357 So. 3d 153, 156 (Fla. 4th DCA 2023). The burden then shifts to the contemnor to prove an inability to pay. Id. “Because incarceration is utilized solely to obtain compliance, it must be used only when the condemner [sic] has the ability to comply. This ability to comply is the condemner's [sic] ‘key to his cell.’ ” Lo v. Lo, 878 So. 2d 424, 426 (Fla. 3d DCA 2004) (citing to Bowen, 471 So. 2d at 1277).

“Where a civil contemnor is jailed without a purge condition that is within his power to accomplish, the sentence transforms into one for criminal contempt without having been preceded by any of the necessary constitutional safeguards.” Pompey, 685 So. 2d at 1013 (citations omitted). A court, therefore, violates due process by imposing criminal contempt without affording criminal due process protections. Id. at 1016. “Among these constitutional safeguards are the right to be represented by counsel, the requirement that the offense be proved beyond a reasonable doubt, and the privilege against self incrimination.” Id. at 1013. Indirect criminal contempt under Florida Rule of Criminal Procedure 3.840 also requires an order to show cause, an opportunity to contest the show cause order, and an arraignment. Fla. R. Crim. P. 3.840(a)-(d).

In this case, the Husband is correct that the $65,511 purge cannot stand because the contempt order fails to identify a specific, presently available source of funds from which he could pay, as required by rule 12.615(e). Neither the August 7, 2025 hearing nor the Amended Second Contempt Order's written findings identify any bank account, asset, liquid funds, or legally enforceable right available to the Husband to satisfy the purge. Instead, the trial court recited credibility concerns, noting the Husband did not “credibly account for the proceeds,” and focused on missing documentation. The trial court did not make the affirmative, evidence-based finding of a present ability to pay tied to a concrete source of funds from which the Husband could pay the purge amount. Indeed, the trial court found it was not credible that the Husband previously received money from his family members. Because the order imposes incarceration without identifying a purge source supported by the evidence adduced at the contempt hearing, reversal is required. See Fla. Fam. L. R. P. 12.615(e); Vazquez, 827 So. 2d at 385; Martyak v. Martyak, 873 So. 2d 405, 407 (Fla. 4th DCA 2004) (finding that although the trial court was not wrong for finding the Husband in contempt, it erred in ordering that he be taken into custody without making “separate affirmative findings that he has the ability to pay the purge amount, and the basis for such ability.”). Accordingly, we reverse the trial court's September 4, 2025 Amended Second Contempt Order.

Reversed.

FOOTNOTES

1.   On February 17, 2026, the Husband's motion to disqualify the trial judge was granted.

2.   The Husband initially appealed the August 8, 2025 Amended Second Contempt Order, the September 17, 2025 purge hearing order, and the surrender orders. After this Court relinquished jurisdiction to allow the newly assigned judge to reconsider certain of the Husband's motions, the trial court vacated those orders on June 11, 2026. The appeals of those orders are thus moot. The trial court declined to vacate the September 4, 2025 Amended Second Contempt Order because the Husband had not filed a motion for reconsideration. Accordingly, the only remaining issue on appeal is whether the Amended Second Contempt Order should be reversed.

FERNANDEZ, J.