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Contempt For Non-Payment of Alimony Can Not Be Prospective

February 15, 2016 by  
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In Bryan v. Jemal, the Second District Court of Appeals for the State of Florida reversed in part a contempt order related to failure to pay alimony in accordance with marital settlement agreement.  The trial court had ruled that the former husband be committed to jail if he failed to make his monthly alimony payments on time each month in the future.  However the Second District Court of Appeals ruled that a contempt order that operates prospectively, by ordering automatic commitment in the event of future noncompliance without requiring an additional hearing, violates due process and is improper.

“Edward P. Bryan appeals a civil contempt order entered by the circuit court following his failure to abide by the terms of the marital settlement agreement between Mr. Bryan and his former wife, Claudia Jemal. Although there probably are enforcement remedies available either in Florida or California that could assist Ms. Jemal in collecting what is due to her, this civil contempt order must be reversed.

After an almost thirty-year marriage, the parties entered into a marital settlement agreement that was incorporated into a Florida judgment of dissolution in 2008. At the time the parties entered into the settlement agreement, they were the sole owners of a California corporation, Bryan Exhaust Services. Pursuant to the equitable distribution in the agreement, Ms. Jemal was to transfer her fifty-percent interest in the corporation to Mr. Bryan and, in return, Mr. Bryan was required to pay Ms. Jemal $210,000. Thereafter, beginning on July 1, 2010, Mr. Bryan was required to pay annual alimony of $125,000 and to maintain a life insurance policy providing a $1,000,000 benefit payable to Ms. Jemal.

Mr. Bryan made the payment for equitable distribution. However, by September 13, 2013, Mr. Bryan was approximately $310,000 behind on his alimony payments and $45,000 behind on premium payments that Ms. Jemal had paid to keep the life insurance policy in effect. The parties stipulated to the entry of a judgment for arrearages, which judgment was entered in October 2013. When Mr. Bryan did not pay this judgment, Ms. Jemal sought a civil contempt order to compel him to pay the judgment.

At the time of the evidentiary hearing in December 2013, Mr. Bryan lived in North Hollywood, California. He testified that he had recently remarried. Although he owned another home nearby, he was living in a rental home with his wife. He had various personal assets that he valued at approximately $35,000. He admitted, however, that he was making approximately $240,000 per year when he entered into the marital settlement agreement and that he made a “gross yearly income” of $183,000 in 2012. He testified that if he paid Ms. Jemal $125,000 per year, he would have only $40,000 per year on which to live.

Significantly, Mr. Bryan testified that he sold Bryan Exhaust Services for $800,000 in 2010 or 2011. He sold the business to his son from a different marriage in order to keep Ms. Jemal from getting it. Mr. Bryan did not receive any cash as part of the transaction. Instead, his son gave him a promissory note in the amount of $800,000, payable at the rate of $5,000 per month. Any outstanding balance on the note is to be forgiven when Mr. Bryan dies. He was seventy-three years old at the time of the contempt hearing. Mr. Bryan believed that he had sold the business for less than fair market value.

The circuit court’s thorough order contains additional findings concerning assets and significant, avoidable personal expenses of Mr. Bryan that we need not detail in this opinion. The court found that Mr. Bryan had an ability to pay $11,416.67 per month toward his current obligations and past arrearages. Only $1000 of this amount is a payment on the arrearage that exceeds $350,000 and continues to accrue interest. The court found that Mr. Bryan was willfully refusing to pay this obligation. To this point, the circuit court’s order is supported by competent substantial evidence, and the amount of the payment ordered appears to be within the court’s discretion.

However, the order then states:

Former Husband shall be, and he is hereby, adjudicated to be in civil contempt for his willful failure and refusal to pay the permanent alimony required of him by the Final Judgment of Dissolution of Marriage, and he is hereby sentenced to report to the Pinellas County Jail for a period of five months and twenty-nine days, said sentence to commence as specified below:

On or before the 16th of each and every month beginning January 16, 2014, Former Husband may purge himself of said contempt, and if incarcerated at that time shall be released from the Pinellas County Jail without further order, upon payment of the sum of $11,416.67 per calendar month (and not later than the 15th day of each calendar month) to Former Wife or to the Sheriff of Pinellas County, Florida, for transmission to Former Wife. If Former Husband has not purged himself of said contempt within the time frame specified in this paragraph, he shall report to the Pinellas County Jail on the 16th day of each and every month beginning January 16, 2014, at 5:00 p.m., then and there to commence serving said sentence. Should Former Husband fail to purge himself of said contempt prior to the commencement of his sentence, and he should fail to report to the Pinellas County Jail as required by this order, an order for the instant[ ] arrest of Former Husband shall be issued without further hearing. This is a continuing and monthly purge amount until Former Husband is current in all alimony payments and arrearages.

(Emphasis in original.)

Although it seems unlikely that Mr. Bryan will actually travel from California to Pinellas County to turn himself into the county jail to serve his six-month sentence, it is beyond dispute that incarceration cannot be imposed as a sanction for civil contempt in such a prospective fashion. In Bowen v. Bowen, 471 So.2d 1274, 1277–79 (Fla.1985), the supreme court set out the proper procedures for imposing contempt and held that “incarceration for civil contempt cannot be imposed absent a finding by the trial court that the contemnor has the present ability to purge himself of contempt.” (Emphasis added.) Moreover, “due process requires that the contemnor be apprised of the nature of his contempt and that he be afforded an opportunity to be heard and defend the allegations levelled against him.” Cokonougher v. Cokonougher, 543 So.2d 460, 461 (Fla. 2d DCA 1989). Thus, “a contempt order that operates prospectively, by ordering the automatic issuance of a committal order in the event of future noncompliance without requiring an additional hearing, violates due process and is improper.” Id.

Accordingly, although we do not disturb the circuit court’s findings of fact, we reverse the order, striking all portions of the order after the phrase “ordered and adjudged” on page thirteen. On remand, the circuit court is permitted to take additional evidence as needed and shall fashion an order in compliance with the applicable law.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, Judge.

KELLY and LaROSE, JJ., Concur.”

 

Termination Of Alimony Because Of Supportive Relationship

January 7, 2016 by  
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Pursuant to Florida Statutes Section 61.14(b)(1) a court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides. The burden is on the obligor to seek the modification and prove by a preponderance of the evidence that a supportive relationship exists.

In Pollack v. Pollack, the Fifth District Court of Appeals for the State of Florida confirmed that a termination of alimony on such grounds should be retroactive to the time of filing a petition for modification rather than the beginning of the supportive relationship itself.  So delaying in the filing a petition for modification can cost you the alimony payments owed between the time of the beginning of the supportive relationship and the time of actual filing of the petition for modification.  A party seeking the modification on such grounds will want just enough time to pass to be able to obtain and present clear evidence of the supportive relationship to the court.

If you need to talk to one of our lawyers about the modification of alimony, please call our office to schedule a consultation.

 

Alimony Award Must Adaquately Address Former Wife’s Needs

December 29, 2015 by  
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In Rhoads v. Rhoads, the First District Court of Appeals for the State of Florida ruled that an alimony award of $600 per month to pay the Former Wife’s insurance was insufficient to address the Former Wife’s needs in the case where the Former Husband had the apparent ability to pay for them.

The court stated that the award did not “provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.”

If you need to talk to a lawyer about alimony in your case contact us for a consultation.

Alimony Award Upheld Despite Trial Court Not Having Included Required Alimony Findings In Judgment Because The Former Husband Failed to Provide A Trial Court Transcript

December 8, 2015 by  
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In Jericka v. Jericka, the Second District Court of Appeals for the State of Florida upheld an alimony award, despite the judgment entered not containing the required findings to support such an award because the former husband had not provided a transcript of the trial court proceedings for the appellate Court to review to determine if the error was harmless.

If you want to talk with one of our attorneys or lawyers to discuss your divorce, alimony, or an appeal please call us on (786)539-4935 to schedule a consultation.

The opinion states:

(KHOUZAM, Judge.) Donald Jericka (the Former Husband) appeals the final judgment of dissolution that awarded Linda Jericka (the Former Wife) permanent periodic alimony. Because the Former Husband failed to provide a transcript or statement of evidence, we affirm.

The parties were married in September 1977 and remained married for approximately thirty-six years. In March 2013, the Former Wife filed a petition for dissolution of marriage. The Former Husband was employed as an electrician and owned and managed his own business with several employees. Throughout the dissolution proceedings, the Former Husband filed five financial affidavits. Each subsequent affidavit showed diminishing income from his business. In the final affidavit, the Former Husband claimed $0 as his monthly income derived from his corporation, showing roughly a $3900 decrease from the initial affidavit.

Following an evidentiary hearing, the trial court entered a final judgment and ordered the Former Husband to pay the Former Wife $2000 a month for permanent periodic alimony. Based upon the Former Husband’s multiple income amendments to his financial affidavits, the trial court determined that the Former Husband was less credible than the Former Wife and that the Former Husband appeared to manage his business in a way to affect the alimony award. With these exceptions, the trial court did not make any other factual findings in the final judgment to support its ruling that the Former Husband pay permanent periodic alimony each month. The record contains neither a transcript nor a statement of evidence or proceedings as provided for by Florida Rule of Appellate Procedure 9.200(b)(4).

The Former Husband contends that the trial court erred in failing to make factual findings in support of its alimony award. Section 61.08, Florida Statutes (2012), requires a trial court to make specific factual determinations as to whether either party has an actual need for alimony and whether either party has the ability to pay alimony. See Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012). Failure to make these findings is reversible error. See Farley v. Farley, 800 So. 2d 710, 711 (Fla. 2d DCA 2001). We note that the order on appeal in this case is bereft of the requisite factual findings and, with the exception of the findings regarding the Former Husband’s financial affidavits, merely tracked the language found in section 61.08(2). See Melo v. Melo, 864 So. 2d 1268, 1269 (Fla. 3d DCA 2004). But we are compelled to affirm as the Former Husband has failed to provide a transcript or statement under rule 9.200(b)(4). This failure precludes this court from reviewing the factual or legal basis for the trial court’s decision. SeeKlette v. Klette, 785 So. 2d 562, 563 (Fla. 1st DCA 2001); see also Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007) (“The most salient impediment to meaningful review of the trial court’s decision is not the absence of findings, but the absence of a transcript.”). We recognize that in some cases the absence of a transcript does not preclude reversal where the error is apparent on the face of the judgment.See Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003). However, a harmless error review is required in alimony cases, and the lack of a transcript frustrates our ability to conduct such a review.Klette, 785 So. 2d at 563-64. That is, without the transcript or suitable substitute, we cannot evaluate the entire case as required for a harmless error analysis. Id. at 563. Accordingly, we affirm.

Affirmed. (ALTENBERND and SLEET, JJ., Concur.)

Divorce Judgment Needs To Make Specific Findings In Support Of Alimony

October 6, 2015 by  
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In Kelley v. Kelley, the Fourth District Court of Appeals held that the trial court should have listed the factors that it had considered and made specific findings of fact in support of its durational alimony award.  While the trial court had stated in its judgment that it had considered “all of the following in awarding alimony request, per FS 61.08” it had not listed the factors it had considered or set forth specific findings of fact to support them.  The Fourth District Court of Appeals reversed the award and gave the trial court the opportunity to list the factors it had considered and make the appropriate findings based on the evidence of record.

If you want to discuss the issues in a divorce case such as alimony and appeals with our attorneys and lawyers call us to schedule a consultation on (786)539-4935.

Appellate Court May Dismiss Appeal In Divorce Case Because The Appealing Party Had Not Complied With The Trial Court’s Orders

August 11, 2015 by  
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In a divorce case the appellant, Michel Whissell, appealed a non-final order finding him in contempt for the fourth time based upon failure to make court ordered support payments and comply with discovery.  Mr. Whissell claimed that there were deficiencies in the trial court’s order.  Mr. Whissell had been held in contempt and subject to incarceration pursuant to a writ of bodily attachment and then made statements to the trial court that he would comply with its orders but did still did not comply.  The Fourth District Court of Appeals ruled that it would dismiss the appeal unless  Mr. Whissell could demonstrate within 30 days that he was in substantial compliance with the orders of the trial court.

It is incumbent on a party to a divorce proceeding to try their best to comply with any trial court orders.  If not the party runs the risk of being found in contempt, subject to a writ of bodily attachment, incarceration and that an appeal of what they claims to be a deficient order will not even be considered by the appellate court whether the order was deficient or not.

In a divorce case it is important to get the advice you need from a lawyer who practices in the areas of divorce and family law in relation to issues like alimony, spousal support, child support, and discovery so mistakes are not made.  Failure to take the appropriate steps at the right time can significantly impact your case.  

If you need to talk to a lawyer or attorney about a divorce you are welcome to contact our office to arrange a consultation on (786)539-4935

Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.