Opinion
Case No. 2D20-967
02-19-2021
James Lester WILLIAMS, Jr., Appellant, v. Jamai F. SAMUELS, Appellee.
James Lester Williams, Jr., pro se. Nicholas C. Mohr of Law Offices of Lobb and Mohr, Bartow, for Appellee.
James Lester Williams, Jr., pro se.
Nicholas C. Mohr of Law Offices of Lobb and Mohr, Bartow, for Appellee.
PER CURIAM.
James Lester Williams, Jr. appeals the circuit court's order holding him in contempt for failing to pay an attorney's fee award in a paternity case. Although the order does not include an express incarcerative direction, it is clearly a contempt order. As such, the circuit court was required to include findings regarding Mr. Williams' ability to comply with the court's prior order and that he willfully failed to do so. See Trisotto v. Trisotto, 966 So. 2d 986, 988 (Fla. 5th DCA 2007) ; see also Fla. Fam. L. R. P. 12.615(d)(1). Those findings are nowhere to be found in this order. We must, therefore, reverse and remand for the circuit court to make the appropriate findings as to whether Mr. Williams' failure to pay was willful and whether he has a present ability to pay the fees as ordered. See Isaacs v. Isaacs, 157 So. 3d 545, 545-46 (Fla. 4th DCA 2015) ("The order here at issue contained no recitation of facts to support the finding that appellant had the ability to comply with the court's prior order. For this reason, we reverse the order on motion for indirect civil contempt."); Trisotto, 966 So. 2d at 988 ("[T]he order fails to include a finding that Mr. Trisotto willfully failed to comply with his alimony obligations despite having the financial ability to do so as required by Florida Family Law Rule of Procedure 12.615(d)(1). Accordingly, on this issue, we reverse for the limited purpose of allowing the trial court to enter an order in compliance with rule 12.615(d)(1)." (citation omitted)).
Following remand, should the circuit court enter a contempt order that includes arrest and incarceration, such an order will also need to include a purge provision, including findings of Mr. Williams' ability to pay the purge amount. See Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla. 1985) ("If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order."); Perez v. Borga, 283 So. 3d 815, 816 (Fla. 4th DCA 2019) ("[O]nce the trial court imposes incarceration as a sanction, the court's order must also contain 'a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.' ... [T]he presumption of ability to pay which attaches at the initial part of the contempt proceeding 'is not a substitute for the separate, affirmative finding of ability to pay required for incarceration.' " (first quoting Ramirez v. Ramirez, 84 So. 3d 434, 435 (Fla. 4th DCA 2012) ; and then quoting Pompey v. Cochran, 685 So. 2d 1007, 1014 (Fla. 4th DCA 1997) )); see also Fla. Fam. L. R. P. 12.615(e) ("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.").
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Reversed and remanded.
KHOUZAM, C.J., and LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.