                                           IN THE DISTRICT COURT OF APPEAL
                                           FIRST DISTRICT, STATE OF FLORIDA

VICTOR G EVERETT,                          NOT FINAL UNTIL TIME EXPIRES TO
                                           FILE MOTION FOR REHEARING AND
       Appellant,                          DISPOSITION THEREOF IF FILED.

v.                                         CASE NO. 1D16-2387

SARAH K EVERETT,

     Appellee.
_______________________________/

Opinion filed July 1, 2016.

An appeal from the Circuit Court for Okaloosa County.
Mary Polson, Judge.

Victor G Everett, pro se, Appellant.

Curtis W. Brannon of Curtis W. Brannon, P.A., Crestview, for Appellee.




PER CURIAM.

      Appellant seeks an emergency stay of an order granting the former wife’s

eighth motion for contempt. We treat the motion as a motion for review of the

lower tribunal’s order denying stay, see Fla. R. App. P. 9.310(f), and affirm.

      The lower tribunal granted the former wife’s eighth motion for contempt for

non-payment of child support. The court found that appellant had failed to pay any

child support since January 29, 2016, other than a court-ordered purge that came
about after the former wife filed her seventh motion for contempt, and that he is

currently $21,607 in arrears. The court found that appellant has had the ability to

pay and continues to have the ability to pay child support as ordered from his VA

disability pay, which he testified was currently $3,220 a month.        The court

sentenced appellant to 120 days in the county jail, suspending the sentence for

three days for appellant to pay a purge of $4,000. The court found appellant had

the present ability to pay the purge from his disability pay, which he had not used

to pay any child support since the last court-ordered purge.       The court then

summarily denied appellant’s motion to stay the order.         Although appellant

subsequently transmitted to this court a pick up and commitment order, this court

has received no indication that appellant is currently incarcerated, and appellant

has not requested release.

      In deciding the motion for stay, the lower tribunal was to consider the

likelihood of prevailing on appeal and irreparable harm to the appellant if the

motion is not granted. See White Constr. Co., Inc. v. State, Dep’t of Transp., 526

So. 2d 998, 999 (Fla. 1st DCA 1988). We review the lower tribunal’s decision on

the motion to stay under the “highly deferential” abuse of discretion standard. See

Sunbeam Television Corp. v. Clear Channel Metroplex, Inc., 117 So. 3d 772, 772

(Fla. 3d DCA 2012). “The idea is that the court most familiar with the controversy




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is in the best posture to determine the appropriateness and conditions of a stay.”

Id.

      Appellant argues that the lower tribunal improperly ruled on the motion for

contempt without first hearing his pending petition for modification and that it did

not make a detailed showing that appellant could afford the purge. But counsel for

the former wife responds that appellant filed two petitions for modification, in

2012 and in 2014, seeking to modify his child support based on a reported increase

in the number of nights the children spent with him. Since filing the petitions, he

has failed to file the proper financial disclosure, set mediation, or get the petitions

to a hearing. Appellant has made only two child support payments since January

of 2015, when he paid less than the monthly amount, and then in February of this

year under threat of arrest. Further, appellant’s income has actually increased

slightly since entry of the original marital settlement agreement. Based on the

above facts and history, we find no abuse of discretion in the lower tribunal’s order

denying the stay.

B.L. THOMAS, WETHERELL, and WINSOR, JJ., CONCUR.




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