Opinion
No. 4D03-3919.
February 2, 2005.
Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Colbath, Judge; L.T. Case No. 1999-DR-4869-FZ.
Joel M. Weissman of Weissman, Yaffa Desmond, P.A., West Palm Beach, for appellant.
Elizabeth G. Daugherty and Nancy W. Gregoire of Bunnell Woulfe, Kirschbaum, Keller, McIntyre Gregoire, P.A., Fort Lauderdale, and Harvey A. Nussbaum of Beiner Nussbaum, P.A., Boca Raton, for appellee.
We reverse the trial court's order finding former husband in contempt for failure to pay child support because it was based on an earlier discovery sanction order striking his pleadings to contempt, precluding him from defending on the grounds of his inability to pay. See Chase v. Chase, 519 So.2d 637 (Fla. 2d DCA 1988) (trial court erred by finding husband's ability to pay was "taken to be established" based on discovery sanction striking his pleadings even though sanction itself was within its discretion).
In a civil contempt proceeding, the trial court cannot incarcerate, even if only coercively, without providing the contemnor the opportunity to prove his inability to comply. That means the court cannot use discovery sanctions as a basis for finding an inability to comply. We remand for proceedings consistent with this opinion.
FARMER, C.J., SHAHOOD J. and GREENE, CHARLES M., Associate Judge, concur.