       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             D.H., the Father,
                                Appellant,

                                     v.

       T.N.L., the Mother and GUARDIAN AD LITEM PROGRAM,
                               Appellees.

                              No. 4D15-3918

                             [ May 11, 2016 ]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Gary L. Sweet, Judge; L.T. Case No. 2012-DP-02.

   Lori D. Shelby, Fort Lauderdale, for appellant.

   Linda L. Weiksnar of Crary Buchanan, Stuart, for Appellee T.N.L.

   No brief filed on behalf of Appellee Guardian Ad Litem Program.

TAYLOR, J.

    The father, D.H., timely appeals an order finding him in contempt and
denying his motion for relief under Florida Rule of Juvenile Procedure
8.270. We affirm the denial of his motion for relief but reverse the finding
of contempt.

    This case has its genesis in dependency court, where the child was
adjudicated dependent as to the mother but not the father. The trial court
initially placed the child with the father, but the mother later achieved
substantial compliance with her case plan and sought reunification with
the child.

   After we reversed an order partially denying the mother’s motion for
reunification and remanded for a new hearing, see T.N.L. v. Dep’t of
Children & Families, 132 So. 3d 319 (Fla. 4th DCA 2014), the father
violated the court-ordered parenting plan. The trial court ordered the
father to reimburse the mother for travel expenses she incurred when she
went to Kentucky in an unsuccessful attempt to pick up the child from the
father for summer timesharing. The court also ordered the father to pay
the mother’s attorney’s fees and costs incurred in connection with her
emergency motion to enforce timesharing. 1 The court later entered an
order determining the amount of fees and costs, and specifically found that
the father’s actions giving rise to the fee award were despicable. 2

   The court ultimately granted the mother’s motion for reunification and
ordered the parties “to mediate and reach an agreement on child support
and a parenting plan.”

   The mother later moved for contempt, alleging that the father had not
timely paid the amounts ordered. In response, the father moved for relief
pursuant to Rule 8.270, arguing, in relevant part, that the fee award was
void for lack of jurisdiction.

   At the hearing on the motions, the court asked the mother’s counsel
whether it needed to make a finding that the father had the ability to pay.
Her counsel responded that “in terms of sanctions, you do not have to find
that he has the ability to pay.”

   The court entered an order denying the father’s motion for relief under
Rule 8.270 and finding the father in willful contempt, even though the
court did not make a finding that the father had the ability to pay. The
court stated that the father “has thirty days from the date of this Order to
make payments to the Mother,” and that if the father does not comply, the
court “may then consider such other and further actions against the
Father as may be permitted by law.” The father appealed.

    As a threshold matter, Rule 8.270(b) allows a court to relieve a party
from an order or judgment for several reasons, including that “the order
or judgment or any part thereof is void.” Fla. R. Juv. P. 8.270(b)(4). Here,
we conclude that the underlying fee award was not void within the
meaning of Rule 8.270(b), even assuming, arguendo, that the award was
improper—an issue we do not decide. 3 Cf. S. Seas Marine, Inc. v. Saab,

1Although Judge Sweet generally presided over the case on remand, Judge Bauer
was covering Judge Sweet at this hearing and made the initial finding that the
mother was entitled to attorney’s fees.

2 Judge Sweet entered the order determining the amount of attorney’s fees and
finding that the father’s conduct was despicable. However, when Judge Bauer
made the initial finding that the father would be required to pay the mother’s
attorney’s fees, he declined to refer to the award as a sanction.
3There was no statutory basis for an award of fees against the father, so the only
conceivable legal basis for the award was the inequitable conduct doctrine. See

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585 So. 2d 959, 960 (Fla. 4th DCA 1991) (even if the fee award was
improper or there was no legal basis for the award, the fee judgment was
not void for lack of jurisdiction and thus could not be set aside for that
reason under Rule 1.540). Moreover, without further comment, we affirm
the denial of relief on all other grounds asserted in appellant’s Rule 8.270
motion.

   We next turn to the trial court’s finding of contempt. “A judgment of
contempt comes to the appellate court clothed with a presumption of
correctness and will not be overturned unless a clear showing is made that
the trial court either abused its discretion or departed so substantially
from the essential requirements of law as to have committed fundamental
error.” DeMello v. Buckman, 914 So. 2d 1090, 1093 (Fla. 4th DCA 2005).

   “[T]he purpose of a civil contempt proceeding is to obtain compliance
on the part of a person subject to an order of the court.” Bowen v. Bowen,
471 So. 2d 1274, 1277 (Fla. 1985) (emphasis removed). Unlike a criminal
contempt sanction, civil contempt is not intended to punish. Elliott v.
Bradshaw, 59 So. 3d 1182, 1184 (Fla. 4th DCA 2011). “While civil
contempt sanctions do not require the same procedural and constitutional
protections as criminal contempt, the key safeguard in civil contempt
proceedings is a finding by the trial court that the contemnor has the
ability to purge the contempt.” Parisi v. Broward Cty., 769 So. 2d 359, 365
(Fla. 2000). Thus, “[a] civil contempt sanction is coercive in nature and is
avoidable through obedience.” Amendments to Fla. Family Law Procedure,
723 So. 2d 208, 213 (Fla. 1998).

    It is well-established that “in order to find an individual in contempt,
the trial court must find that the contemnor had the ability to comply with
the previous court order.” 4 Dep’t of Children & Families v. R.H., 819 So.
2d 858, 862 (Fla. 5th DCA 2002). Florida Rule of Juvenile Procedure
8.286, which governs indirect civil contempt proceedings in dependency
cases, codifies this rule and sets out detailed procedures that must be
followed before a person can be found in civil contempt.

Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (“The inequitable conduct
doctrine permits the award of attorney’s fees where one party has exhibited
egregious conduct or acted in bad faith.”).

4 In some circumstances (which do not apply here), the previous court order will
create a presumption that the contemnor had the ability to comply with the order.
See, e.g., Hernandez v. Frontiero, 73 So. 3d 875, 875 (Fla. 4th DCA 2011) (“The
final judgment of support created a presumption that the father had the ability
to pay child support and to purge himself of any subsequent contempt.”).


                                       3
    Under Rule 8.286(d)(1), an order finding a person in contempt must
contain specific findings, including a finding that the alleged contemnor
had the present ability to comply with a prior court order and willfully
failed to do so:

      An order finding the alleged contemnor to be in contempt must
      contain a finding that a prior order was entered, that the
      alleged contemnor has failed to comply with the prior court
      order, that the alleged contemnor had the present ability to
      comply, and that the alleged contemnor willfully failed to
      comply with the prior court order. . . .

Fla. R. Juv. P. 8.286(d)(1) (emphasis added).

    Here, the trial court erred in finding the father in contempt without
finding that he had the present ability to comply with the orders at issue.
The court did not make a finding as to whether the father had the present
ability to pay the amounts ordered. The contempt order under review thus
fails to satisfy the requirements of Rule 8.286(d)(1). While this issue was
not preserved, the court departed so substantially from the essential
requirements of law as to have committed fundamental error. In our view,
the court’s failure to scrupulously follow the mandates of a procedural rule
enacted to ensure that the due process rights of alleged contemnors are
protected meets the standard of fundamental error.

   The mother’s principal argument in defense of the contempt order—
that an ability-to-pay requirement itself violates due process by creating a
two-tiered system in which only those with the ability to pay would have
to pay a sanction while those without the ability to pay could behave
outrageously—is wholly unpersuasive. Civil contempt proceedings may
not be used to create debtors’ prisons. An ability-to-pay requirement is
therefore necessary to prevent civil contempt proceedings from losing their
remedial character and becoming punitive. Moreover, those who have the
ability to pay are not similarly situated with those who do not.
Accordingly, we reject the mother’s argument that an ability-to-pay
requirement should not apply to contempt proceedings brought to enforce
an award of fees imposed as a sanction, as this argument is inconsistent
with well-established law on civil contempt.

   In sum, we affirm the denial of the father’s Rule 8.270 motion, but we
hold that the trial court committed fundamental error in finding the father
in contempt of prior orders without finding that the father had the present
ability to comply with the orders.

                                     4
   Affirmed in part, Reversed in part, and Remanded.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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