       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       MARCO AURELIO PEREZ,
                             Appellant,

                                    v.

                         ALICIA MARIA BORGA,
                                Appellee.

                             No. 4D18-3400

                            [October 23, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Richard Lopane, Judge; L.T. Case No. FMCE12-
08235 (33)/93.

   Jose C. Bofill of Bofill Law Group, Miami, for appellant.

   Kevin Coyle Colbert, Miami, for appellee.

DAMOORGIAN, J.

    Marco Aurelio Perez (“Former Husband”) appeals the trial court’s order
finding him in contempt and ordering incarceration as a sanction for
failing to make court ordered alimony payments to Alicia Maria Borga
(“Former Wife”). Former Husband argues the trial court erred by: (1)
finding Former Husband in willful contempt for failing to pay court ordered
alimony; and (2) failing to make the required finding that Former Husband
has the present ability to pay the purge amount. We affirm on the first
issue without further comment. As to the second issue, we reverse and
remand, finding that the trial court failed to make the required separate,
affirmative finding of present ability to pay the purge amount.

   The parties’ final judgment of dissolution of marriage required Former
Husband to pay Former Wife monthly permanent periodic alimony.
Former Husband failed to pay the alimony payments, and Former Wife
moved to have him held in contempt. Following an evidentiary hearing,
the trial court found Former Husband in “willful contempt of the previous
Final Judgment” and ordered incarceration as a sanction unless Former
Husband paid the purge amount of $87,673.65 within seven days of the
order. Former Husband failed to pay the purge amount and a writ of arrest
and incarceration was entered. This appeal follows.

   It is well settled law that once the trial court imposes incarceration as
a sanction, the court’s order must also contain “a separate affirmative
finding that the contemnor has the present ability to comply with the purge
and the factual basis for that finding.” Ramirez v. Ramirez, 84 So. 3d 434,
435 (Fla. 4th DCA 2012) (quoting Fla. Fam. L. R. P. 12.615(e)). Moreover,
the presumption of ability to pay which attaches at the initial part of the
contempt proceeding “is not a substitute for the separate, affirmative
finding of ability to pay required for incarceration.” Pompey v. Cochran,
685 So. 2d 1007, 1014 (Fla. 4th DCA 1997) (internal quotation marks
omitted).

   Here, the contempt order sanctioned Former Husband with
incarceration but failed to include the required separate, affirmative
finding that he had the present ability to pay the purge amount, and the
factual basis for such a finding.

   We acknowledge Former Husband did not bring the lack of findings to
the trial court’s attention through a motion for rehearing or some other
appropriate motion. We also acknowledge that the First District has held
that, where the trial court fails to make the required separate affirmative
finding of ability to pay the purge amount, “a party must alert the court of
the error via a motion for rehearing or some other appropriate motion in
order to preserve it for appeal.” Williams v. Williams, 152 So. 3d 702, 704
(Fla. 1st DCA 2014); see also McDaniels v. McDaniels, 2019 WL 3296627,
at *1 (Fla. 1st DCA July 23, 2019) (same). However, this Court’s recent
decision in Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018), compels our
review.

    In Fox, this Court held that a party may raise on appeal the issue of the
trial court’s failure to make statutorily required findings regarding
alimony, equitable distribution, and child support without having
previously filed a motion for rehearing. Id. at 793–94. We reasoned that:

      Dissolution of marriage cases are unlike other civil litigation.
      The final dissolution judgment is often not the end of the
      litigation process. The final judgment establishes ground zero
      for the purpose of petitions for enforcement, modification, and
      contempt proceedings.          Without the statutorily-required
      findings of fact, it is difficult, if not impossible, to review the
      record for evidentiary support of the judgment, to enforce a
      judgment, or to subsequently determine if there has been a

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      material change in circumstances sufficient to justify a
      modification of that judgment.

      ....

      Rather than refusing to reach an appellate issue for want of a
      motion for rehearing, it is far better to require a trial court to
      make the statutorily-required findings. To evade review of a
      trial court’s failure to make required findings because
      someone either forgot or failed to move for rehearing frustrates
      the very purpose for those findings. Requiring a motion for
      rehearing is a rule that is too restrictive and imprecise to
      operate fairly where children and families are the focus. This
      is especially true where many family court cases are handled
      pro se.

Id. We find that the same rationale in Fox extends to a final order of
contempt stemming from the failure to pay court ordered alimony.

   Accordingly, we reverse the order of contempt and remand for the trial
court to make the appropriate findings, set forth by the Florida Family Law
Rules of Procedure 12.615(e), with regard to Former Husband’s present
ability to pay the purge. In so doing, the trial court is not required to
reconvene the evidentiary hearing if the record before it is sufficient. We
also certify conflict with Williams and McDaniels.

   Affirmed in part, reversed in part and remanded.

CIKLIN and GERBER, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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