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

SENCOA DAMAIR                         NOT FINAL UNTIL TIME EXPIRES TO
CRAWFORD,                             FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellant,
                                      CASE NO. 1D16-2059
v.

DEPARTMENT OF REVENUE
and TANISHA CHARMIA
WATSON,

      Appellees.

_____________________________/

Opinion filed May 16, 2017.

An appeal from the Circuit Court for Duval County.
Elizabeth A. Senterfitt, Judge.

Neil L. Weinreb, Jacksonville, for Appellant.

Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney
General, Child Support Enforcement, Tallahassee, for Appellees.



WOLF, J.

      Appellant challenges an order entered by the circuit court that adopted a

hearing officer’s recommended order finding appellant in contempt for failure to

pay child support and ordering his immediate incarceration until he paid a $500

purge. Appellant raises several arguments, two of which merit discussion. He
argues (1) there was not competent, substantial evidence to support the finding that

appellant had the present ability to pay the $500 purge; and (2) the hearing officer

erred when she ordered appellant’s immediate arrest without the authority to do so.

The Department of Revenue (the Department) correctly concedes error. Thus, we

reverse.

                                       Facts

      In September 2014, the circuit court entered an order finding that appellant

was the legal parent of two minor children. The court ordered appellant to pay

$511 a month in child support, plus $3,066 in retroactive child support.

      In January 2016, the Department filed a motion for contempt for failure to

pay child support and a notice of hearing. Hearing officer Athiel Jones conducted a

hearing on March 30, 2016, during which the Department alleged that appellant

had not paid much in child support since the original support order was entered,

except for several $500 payments as a purge in prior contempt proceedings.

Appellant’s last payment was a partial purge payment on July 14, 2015, and he still

owed $10,964 in child support.

      Appellant testified that he did not have a job, but he wished to pay his child

support. Appellant was unable to find employment and had applied to 30 different

jobs with no success. He did not have a driver’s license at the time of the hearing,

and that had impaired his ability to find employment. However, appellant had

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gotten three or four days’ work through a temporary agency at $9.30 an hour, and

he was expecting to continue getting some work from the agency over the next

couple of months. He requested that an income deduction order be sent to the

temporary agency. He stated he had not turned down any work. A financial

affidavit showed appellant had no assets or money other than $15 cash, and

appellant further testified that he survived by receiving shelter and food from his

girlfriend.

       After stating that she had reviewed appellant’s payment history, the hearing

officer found appellant in contempt and ordered that he be immediately

incarcerated with a $500 purge. Counsel for appellant objected and asked what

competent, substantial evidence the hearing officer thought established that

appellant had the present ability to pay the purge amount. The Department’s

counsel argued that “it’s the payment history.” The hearing officer explained that

“I do find he has an ability to pay. He has an ability to earn income.” Appellant’s

counsel objected that was not the correct legal standard. Counsel also objected that

the hearing officer lacked the legal authority to order that someone be incarcerated.

The hearing officer responded, “Thank you for bringing that to my attention,” but

did not rescind her order that appellant be incarcerated. Appellant was arrested.

       On April 5, 2016, a hearing officer reduced the purge amount, and appellant

paid the reduced purge and was released on that date.

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       On April 6, 2016, the hearing officer issued a written order on the March 30,

2016, hearing recommending that the circuit court find appellant in contempt.

Specifically, the hearing officer noted that appellant testified that he had no

physical disabilities that prevented him from working, that he had done some work

for a temporary agency, and that he had previously paid two purges of $500 but

had never made a regular child support payment. A circuit court judge adopted the

recommended order on April 11, 2016. After appellant filed his notice of appeal,

the Clerk of Court determined that appellant was indigent based on his financial

affidavit.

                              I. Present Ability to Pay

       Appellant argues that the hearing officer’s finding that appellant had the

present ability to pay the $500 purge, which was later adopted by the circuit court,

was not supported by competent, substantial evidence. The Department correctly

concedes error.

       Although a judgment of contempt is presumed correct on appeal, it will not

be upheld if there is insufficient evidence in the record to support it. Williams v.

Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014).

       The Florida Supreme Court has held that the initial order or judgment

directing a party to pay support must be predicated on an affirmative finding that

the party has the present ability to pay. Bowen v. Bowen, 471 So. 2d 1274, 1278

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(Fla. 1985). The burden of proof then shifts to the defaulting party, who must show

he is no longer able to meet his support obligations. Id. at 1278-79. The court must

then evaluate the evidence to determine whether the party has willfully violated the

support order. Id. If the court finds the party in contempt for failure to pay, that

order must contain a specific finding that the party had the present ability to pay

support but willfully failed to do so. Fla. Fam. L. R. P. 12.615(d)(1). The court

may impose a variety of sanctions for contempt, including incarceration, but an

order imposing incarceration must set conditions for purge of the contempt based

on the contemnor’s ability to pay and must include a separate, affirmative finding

that the contemnor possesses the present ability to comply with the purge

conditions. Fla. Fam. L. R. P. 12.615(e); Bowen, 471 So. 2d at 1279.

      “The purpose of a civil contempt proceeding is to obtain compliance on the

part of a person subject to an order of the court. Because incarceration is utilized

solely to obtain compliance, it must be used only when the contemnor has the

ability to comply. This ability to comply is the contemnor’s ‘key to his cell.’”

Bowen, 471 So. 2d at 1277 (quoting Pugliese v. Pugliese, 347 So. 2d 422 (Fla.

1977)).*


*
 The circuit court has means other than incarceration available to seek compliance
with a court order, such as requiring an unemployed party to seek proper
employment and to report weekly until the employment is secured. Bowen v.
Bowen, 471 So. 2d 1274, 1278 (Fla. 1985). See also Herrera v. Sanchez, 885 So.
2d 480, 482 (Fla. 5th DCA 2004) (holding the circuit court erred in holding an
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      In appellant’s case, the hearing officer found appellant had the present

ability to pay his regular child support obligation and the $500 purge based on his

history of paying prior purges and his ability to gain employment. However,

neither his payment history nor his ability to obtain a job was competent,

substantial evidence that he had the present ability to pay. Appellant testified that

he had no assets and no income. The lower court determined appellant was

indigent, establishing that he lacked a present ability to pay. See Bowen, 471 So.

2d at 1279 (“The finding of the trial judge that the respondent was indigent for

purposes of the appeal affirmatively establishes that the respondent was indigent

and had no present ability to pay the purge amount.”). Thus, there is no competent,

substantial evidence supporting the finding of contempt and subsequent

incarceration. As such, we reverse the contempt order.




indigent party in contempt for failure to pay child support based on the court’s
finding that the party was capable of earning minimum wage because “the
appropriate action was to order him to seek proper employment”); Lawrence v.
State, Dept. of Revenue ex rel. Walker, 755 So. 2d 139, 140 (Fla. 2d DCA 1999)
(finding where a party presented evidence that he lacked the present ability to pay
child support but it appeared he was voluntarily underemployed, the circuit court
erred in finding him in contempt and instead should have ordered him to find
proper employment).

                                         6
                   II. Hearing Officer’s Authority to Incarcerate

      Appellant argues the hearing officer erred by ordering appellant’s arrest

without any authority to do so, thus making the incarceration per se illegal. The

Department concedes error.

      The Florida Family Law Rules of Procedure grant a hearing officer general

powers and duties to conduct proceedings and to enter recommended orders to be

reviewed by the circuit court. Fl. Fam. L. R. P. 12.491(e)-(f). These enumerated

powers do not include the power to order an arrest. In contrast, the Family Law

Rules of Procedure state that a circuit court judge may impose incarceration as a

sanction for civil contempt. Fl. Fam. L. R. P. 12.615. The circuit court also has the

inherent power to punish contempt, including by incarceration, under the Florida

Constitution. See Ex parte Earman, 95 So. 755, 760 (1923).

      The hearing officer, unlike the circuit court judge, is neither a constitutional

officer nor a member of the judiciary. Thus, a hearing officer lacks the authority

either to enter an order of contempt or to order incarceration. See Gray v. State,

489 So. 2d 86 (Fla. 5th DCA 1986) (finding a special master lacked the authority

to order a former husband’s arrest for failure to pay support, and thus the former

husband’s conviction for resisting that arrest without violence could not stand).

      Here, the hearing officer found appellant in contempt and ordered his

immediate incarceration without any authority to do so, which was error.

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      We note that the Department suggests this issue may be moot because

appellant has already been released from incarceration. However, appellant argues

that the issue is not moot because it is an issue that is capable of repetition but

would evade review. We agree. See State v. S.M., 131 So. 3d 780, 783 (Fla. 2013)

(stating a challenge to the legality of a juvenile’s pre-hearing detention was not

moot and would continue to evade review because a juvenile is detained for only a

short period of time before the adjudicatory hearing).

      In summation, we find there was no competent, substantial evidence that

appellant had the present ability to pay his child support obligation or the purge

amount, and that the hearing officer lacked the authority to order appellant’s

incarceration. As such, we REVERSE the contempt order.

LEWIS and WETHERELL, JJ., CONCUR.




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