Most attorneys are familiar with the notion of seeking civil contempt sanctions when the opposing party fails to comply with a trial court order to pay money. Yet civil contempt frequently causes confusion for attorneys and judges alike, who often focus only on whether the other party has not paid money as required by a prior court order, without more. The resulting civil contempt order may be subject to reversal for lack of necessary findings by the trial court regarding the contemnor’s ability to purge the contempt. This article highlights the importance of detailed findings of a contemnor’s ability to pay in civil contempt orders.
A court has a broad range of coercive sanctions at its disposal in civil contempt proceedings once a party’s noncompliance with the court’s order is established. However, “the key safeguard . . . is a finding by the trial court that the contemnor has the ability to purge the contempt.” Parisi v. Broward County, 769 So. 2d 359, 365 (Fla. 2000). The “ability to purge” safeguard must be a present ability. Even “[a] finding that a party divested himself of assets does not substitute for a finding of present ability to pay.” Elliott v. Bradshaw, 59 So. 3d 1182, 1186 (Fla. 4th DCA 2011). The requirement of the contemnor’s present ability to purge applies not only to incarceration, but also to any other “coercive sanction” that may be used as a means to seek compliance with a court order. Sanders v. Laird, 865 So. 2d 649, 652 (Fla. 2d DCA 2004).
There must be “a specific finding” regarding the ability to comply and “a factual basis for any such finding.” Reynolds v. State, 792 So. 2d 524, 525 (Fla. 4th DCA 2001). Accordingly, important restrictions limit the assets a court can use to find that the contemnor has the ability to pay the purge. A finding of ability to pay the purge must, absent unique circumstances, be based upon the contemnor’s assets rather than the ability to obtain financial assistance from others. Russell v. Russell, 559 So. 2d 675, 676 (Fla. 3d DCA 1990). The court may not base the finding of present ability to pay on mere speculation that a party has equity in an asset that the party could sell. Shelton v. Shelton, 965 So. 2d 179 (Fla. 2d DCA 2007). Additionally, the trial court’s finding of a present ability to pay may not be overly dependent upon the speculative future sale of an asset. Elliott, 59 So. 3d at 1185-86.
Our firm recently successfully litigated contempt purge issues on a motion for rehearing of an order that held our client in civil contempt for failure to pay an award of temporary attorney’s fees. The court awarded our client’s former wife $79,333 in temporary attorney’s fees to litigate a petition for modification of alimony. The former wife filed a motion for contempt when our client was unable to pay the fee award. After a hearing, the court granted the former wife’s motion to hold our client in contempt. The court’s contempt order found our client had the present ability to pay a purge amount from certain assets the court identified in the order. The court also ordered our client to be incarcerated unless he made recurring future monthly payments to the former wife’s counsel on the fee award.
In our motion for rehearing, we stressed that civil contempt requires a finding that the contemnor has the present ability to comply with the court’s order. We argued that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We further maintained that the trial court failed to make adequate findings of our client’s ability to pay because the court failed to find that our client had equity in the assets that the court had identified from which our client could pay the purge. The trial court agreed with our position and rendered an order granting our motion for rehearing of the contempt order.
The civil contempt safeguards discussed above require trial courts to make detailed and specific findings when identifying assets from which a party can purge the contempt. Some attorneys may decide after reviewing the law that a civil contempt order is not obtainable or desirable in their particular case. Regardless, attorneys seeking to obtain civil contempt sanctions should be prepared to present detailed evidence of the contemnor’s ability to pay from specified assets, and to ensure the court makes the corresponding detailed findings in the written order. The resulting civil contempt order will be far more likely to withstand the scrutiny of an appellate court or of the trial judge on a motion for rehearing.