Florida’s appellate courts show great deference to trial court evaluation of witness demeanor and credibility.
By Dorothy F. Easley (Florida)
Before appealing or defending a contempt order in alimony and child support matters, we all know how important it is to ensure the order is sufficiently supported in the trial court. But we also need to consider, as part of our regular practice, how that order will be reviewed on appeal because the order will almost always be the subject of some kind of appeal. Appeals of contempt orders are generally, win or lose, judged by the “competent substantial evidence test,” widely applied to most evidentiary hearings as well as trials. Under those appellate standards, witness credibility is a decision of fact and appellate courts will give great deference to the trial courts’ factual findings. This is because of the trial court’s greater ability below to observe witness credibility. This standard, however, can be both a blessing and a curse.
Understanding why brings us back to basics: in Florida civil contempt proceedings in family support matters, the trial court must find: (1) a prior valid order of support; (2) a failure to pay all or part of the ordered support; (3) the parent’s present ability to pay the support; and (4) the parent’s willful refusal to comply with the prior court order. See Chetram v. Singh, 937 So. 2d 716 (5th DCA 2006); California Club Realty, Inc. v. Lucca, 517 So. 2d 72 (Fla. 3d DCA 1987).
As for the procedures followed, the Florida Supreme Court set those forth and the elements required for a showing of civil contempt in family support matters in Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985). In Bowen, the supreme court found that the first and second elements for establishing civil contempt are satisfied by showing (1) a prior court order directing the alleged contemnor to pay support and (2) that he/she has failed to pay all or part of the ordered support. This showing of a prior court order also satisfies the third element (ability to pay), where the initial support order creates a presumption in later proceedings that there is an ability to pay.
Once these showings are made, the burden shifts to the alleged contemnor to dispel or burst the presumption of ability to pay. This is done by demonstrating that, due to circumstances beyond his/her control which intervened since the time the order directing him/her to pay was entered, he/she no longer has the ability to meet the support obligations. To show that, however, the alleged contemnor cannot merely assert conclusory allegations of present inability to pay the ordered support. It requires a particularized showing of specific changes in financial position since the date of the last order and of present income and assets. The court must then evaluate the evidence, including credibility, to determine whether it sufficiently justifies a finding that the alleged contemnor both has the present ability to pay and has willfully refused to do so. See Bowen, 471 So. 2d at 1279; see also Gregory. v. Rice, 727 So. 2d 251, 254 (Fla. 1999).
If the Florida trial court finds that a civil contempt has occurred, it then decides the appropriate method to obtain compliance with the earlier support order and this can include incarceration. But if the court determines that incarceration is warranted, 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.” Bowen, 471 So. 2d at 1279. To do that, Florida decisions instruct that the court must look at all of the alleged contemnor’s assets, not solely one; it should consider all assets and property interests of the contemnor, including cash, real property and business interests. Id.
Seeing these standards play out, in Albright v. Albright, 788 So. 2d 1125 (4th DCA 2001), for example, the trial court found Mr. Albright in civil contempt for failure to pay ordered support. The lower court concluded incarceration was the appropriate method to obtain compliance. Mr. Albright appealed that order, and argued that his incarceration was not appropriate because he presented sufficient evidence to show that he no longer had the ability to pay the ordered support. Florida’s Fourth District Court of Appeal disagreed and affirmed the trial court ruling. The appellate court looked at Ms. Albright’s production of evidence pointing to the existence of a trust account that Mr. Albright held, which account was also referenced in the marital settlement agreement entered into a few years before the contempt hearing. To rebut this evidence and the presumption that he had the ability to pay the ordered support, Mr. Albright had testified that this account never existed and that he did not have any money stashed away. He presented no evidence beyond this testimony. The trial court found his testimony to be not credible, rejected it, and found him in civil contempt. The appellate court showed great deference to the trial court’s rejection of Mr. Albright’s testimony as not credible and affirmed the contempt order.
Similarly in Mallardi v. Mallardi, 721 So. 2d 380 (4th DCA 1998), Florida’s Fourth District denied Mr. Mallardi’s petition for habeas corpus, after the trial court ordered he be incarcerated for his willful failure to pay ordered support. There, the trial court considered all possible assets from which the purge amount could be paid, Mr. Mallardi’s testimony in prior proceedings regarding support payments, where he had testified that he managed the family business and paid himself on a weekly basis in cash. Even though Mr. Mallardi during the proceedings for civil contempt had changed his testimony and insisted that he no longer managed the business and had sold it to his brother, the court found Mr. Mallardi’s testimony not credible; the he had “concocted” this scheme to avoid his obligation to pay support. The trial court concluded that Mr. Mallardi had a continuing connection with the business that undermined his testimony about his severing ties with the business and no longer receiving any income from it. The court determined that Mr. Mallardi could pay the purge from the business cash flow or from the value of his interest in the business itself. On appeal, the Fourth District Court affirmed, again showing great appellate deference to a trial court’s conclusions about an alleged contemnor’s lack of credibility. Id.
Distilling this down, the trial court’s order must include its factual findings as to each element, and a finding that a party divested him/herself of assets does not substitute for finding of present ability to pay. A contempt order for failure to pay child support must include factual findings of: the existence of an earlier valid support order; failure to pay all or part of that ordered support; present ability of the alleged contemnor to pay the support; and willful refusal of the alleged contemnor to comply with the prior court order. See Fam. Law R. Proc., Rule 12.615(d)(1). Elliott v. Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA 2011); Trisotto v. Trisotto, 966 So. 2d 986 (Fla. 5th DCA 2007); Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992), cause dismissed, 617 So. 2d 322 (Fla. 1993).
Florida’s decisional law shows that those defending or advancing contempt proceedings should be prepared to present concrete evidence of any changes in financial position since the support order was entered or evidence demonstrating current income or ability/inability to pay. Evidence of businesses owned from which the contemnor derives income, purchases of expensive jewelry, gold and silver, extraction of substantial marital cash and even prior testimony leading to the contempt proceedings can all be considered. They will help to support or rebut the presumption of assets and present ability to pay alimony and child support. Rebutting this presumption with mere testimony about no longer having assets will rarely be enough, and Florida’s trial courts can properly rely on the moving party’s evidence of the alleged contemnor’s assets from which he/she could pay the purge. Bear in mind that, if the Florida trial court makes factual findings that are based on evaluating extensive testimony from both parties in evidentiary hearings, and the support order giving rise to the contempt proceedings is satisfactorily specific and concrete, Florida’s appellate courts will show great deference to trial court evaluation of witness demeanor, credibility and documents, regarding specific assets from which the contemnor could pay the purge amount.
Dorothy F. Easley MS, JD, BCS Appeals, is Board Certified by The Florida Bar as an Appellate Specialist, Past-Chair of the Florida Appellate Practice Section, and Past-Vice Chair of the Florida Appellate Court Rules Committee. She is the founder of Easley Appellate Practice, PLLC, a statewide family law strategic litigation support and appellate practice. She has been acknowledged by her peers as a Florida Legal Elite, a Top Appellate Lawyer, Florida Super Lawyer and AV Preeminent by Martindale-Hubbell.