Opinion
No. 1D18-2602
05-18-2020
Tommy VINSON, Former Husband, Appellant, v. Mary Grace VINSON, Former Wife, Appellee.
Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellant. Mary Grace Vinson, pro se, Appellee.
Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellant.
Mary Grace Vinson, pro se, Appellee.
Per Curiam.
The former husband challenges a contempt order that was entered subsequent to an amended final judgment that has since been reversed in part. We agree that the contempt order was entered in error and remand with instructions to vacate the contempt order. The former husband and the former wife were divorced via amended final judgment in 2017. The amended final judgment awarded the former wife an "equalization payment" of $80,596, which would be reduced by unpaid child support of $2,400 to $78,196. This amount was to be paid by the former husband to the former wife within ten days of the date of amended final judgment. The amended final judgment went on to provide,
Should the husband not timely make the lump sum payment to the wife described herein, then the husband shall pay to the wife non-taxable alimony in the amount of $2,000 per month on the first day of each month with the first such payment becoming due and payable on December 1, 2017. These alimony payments shall not terminate upon the wife's death or remarriage and shall not be subject to termination or modification in the event the wife enters into a supportive relationship.
The former wife later moved for contempt, which the trial court granted on the basis that the former husband failed to pay "five installments of the equalization payments" despite having the ability to pay. The court held the former husband in contempt of court and ordered that he be immediately incarcerated for a period of thirty days subject to a purge in the amount of $10,600. Several months later, this Court reversed the equitable distribution portion of the amended final judgment, finding the court misclassified $70,000 of the husband's property as a martial asset. See Vinson v. Vinson , 282 So. 3d 122 (Fla. 1st DCA 2019) ( Vinson I ). The former husband argues the contempt order should also be reversed.
The fact that this Court has already reversed the trial court's equitable distribution award in the amended final judgment is not alone a basis to reverse as "an aggrieved party's failure to abide by [an] order may be punished by contempt even if the order is ultimately found to be erroneous." Schroll v. Schroll , 262 So. 3d 832, 834 (Fla. 1st DCA 2018) (citations omitted) (noting that the fact the Court had reversed the underlying equitable distribution scheme did not preclude consideration of the trial court's order of contempt for the former husband's failure to comply with equitable distribution).
Like the appellant in Schroll , the former husband argues the trial court lacked the authority to enforce an equitable distribution scheme through its contempt powers. Id. at 835 (reversing contempt order to incarcerate former husband in contempt for failing to transfer funds as required of him). In Vinson I , this Court recognized the trial court erred in characterizing the unpaid $78,196 as alimony:
We also agree with the former husband that the trial court erred when it provided that if the former husband failed to pay the lump sum equalization payment within ten days of the entry of the final judgment, the amount due would be reclassified as alimony. First, at the outset of the hearing, the former wife, through counsel, advised the trial court that there would be "no claim for alimony." Second, once reclassified, the so-called alimony payments were expressly ordered "not [to] terminate upon the Wife's death or remarriage and shall not be subject to termination or modification in the event the Wife enters into a supportive relationship." The latter language is wholly at odds with the definitions of the various forms of alimony authorized by section 61.08(5) - (8), Florida Statutes, all of which provide that the alimony shall end upon the death or remarriage of the receiving spouse.
Furthermore, as the former husband points out, a lump sum payment award
that effects a property distribution is not enforceable by contempt, as are alimony awards. Bongiorno v. Yule , 920 So.2d 1209, 1210 (Fla. 1st DCA 2006) ; see also Braswell v. Braswell , 881 So.2d 1193, 1198 (Fla. 3d DCA 2004). Accordingly, on remand, in reconsidering the equitable distribution scheme, the trial court should not reclassify any equalization payments as alimony as a sanction for the former husband's failure to make that lump sum payment.
Vinson I , 282 So. 3d at 140–41.
The $78,196 was clearly an equalizing payment that was part of equitable distribution. As Vinson I recognized, nothing about it was alimony. As such, the trial court erred in using its contempt powers to enforce an equitable distribution award. See Schroll , 262 So. 3d at 835 (recognizing contempt cannot be used to enforce a property settlement). Accordingly, the order on contempt should be vacated. We decline the former husband's request to remand with instructions directing the $10,000 purge amount be repaid to him. The trial court's contempt order directed that the $10,000 purge payment be applied to the outstanding balance of the unpaid equalization payment. As such, the trial court is in a better position to determine the current state of the parties’ financial positions. See id. (reversing the contempt order after the former husband had already paid the purge and was released from incarceration on the basis the trial court lacked authority to hold the former husband in contempt).
Roberts, Rowe, and Bilbrey, JJ., concur.