       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                           FOURTH DISTRICT
                            July Term 2014

                       ROCCO JAMES NAPOLI,
                            Appellant,

                                   v.

                     SUSAN CAMPBELL NAPOLI,
                            Appellee.

                            No. 4D14-234

                            [July 16, 2014]

  Appeal of non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Amy Smith, Judge; L.T. Case No.
502012DR008787XXXXNB.

   John J. O’Hara of the O’Hara Law Group, P.A., Boca Raton, and Carla
T. Reece of Canaveral Legal Group, P.L., Cocoa, for appellant.

  John A. Kovarik of John A. Kovarik, Esq. P.A., Tequesta, for appellee.

DAMOORGIAN, C.J.

   Rocco James Napoli (“Husband”) appeals the trial court’s order
holding him in contempt for failure to pay temporary spousal support to
Susan Campbell Napoli (“Wife”). We reverse and remand for further
proceedings because the trial court’s contempt order does not contain
the written findings required by rule 12.615 of the Florida Family Law
Rules of Procedure. The Husband raises several other challenges to the
contempt order, which we reject without further comment.

   During the pendency of the parties’ divorce case, the trial court
entered a temporary relief order requiring the Husband to pay spousal
support to the Wife. The Husband did not comply with the payment
schedule set forth in the order and the Wife moved to hold him in
contempt. After a hearing on the Wife’s motion,1 the trial court entered
an order finding the Husband in “direct civil contempt of court for his
failure to comply with a valid Court order despite his ability to do so.”
The contempt order states that the Husband failed to pay “a single dollar
of alimony to the Wife.” It also provides for the Husband’s incarceration
unless he pays the purge amount of $2,500 within fifteen days of the
order. This appeal follows.

    “A judgment of contempt comes to the appellate court clothed with a
presumption of correctness and will not be overturned unless . . . 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).
On appeal, the Husband argues that the trial court’s written contempt
order is legally deficient. We agree and reverse.

   When a trial court finds that a civil contempt has occurred, it must
enter a written order containing:

      a finding that a prior order of support was entered, that the
      alleged contemnor has failed to pay part or all of the support
      ordered, that the alleged contemnor had the present ability
      to pay support, and that the alleged contemnor willfully failed
      to comply with the prior court order. The order shall contain
      a recital of the facts on which these findings are based.

Fla. Fam. L. R. P. 12.615(d)(1) (emphasis added); see also Ramirez v.
Ramirez, 84 So. 3d 434, 434 (Fla. 4th DCA 2012) (reversing contempt
order because it did not “include the required findings that appellant had
the present ability to pay the support and that he willfully refused to
comply with the prior court order, and fail[ed] to contain a recital of the
facts on which those findings were based”). If the court imposes
incarceration as a sanction, the order must also contain “‘a separate
affirmative finding that the contemnor has the present ability to comply


    1   Because there is no transcript of the contempt proceeding, we are unable
to review the evidence presented or any of the findings made by the trial court
during the hearing. However, even without a transcript, we can still review the
trial court’s written contempt order to make sure that it contains the required
findings. See Connolly v. Connolly, 543 So. 2d 356, 357 (Fla. 2d DCA 1989)
(remanding for further proceedings because the trial court failed to make a
finding in its written order that appellant had the ability to pay the purge
amount and there was no transcript of the proceedings reflecting appellant’s
ability to pay).

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with the purge and the factual basis for that finding.’” Ramirez, 84 So.
3d at 434–35 (quoting Fla. Fam. L. R. P. 12.615(e)).

   We hold that the written contempt order in this case does not comport
with these requirements. First, the contempt order does not contain an
express finding that the Husband willfully failed to comply with the
court’s temporary relief order. Second, the contempt order does not
articulate the facts supporting the court’s conclusion that the Husband
had the ability to comply with the court’s prior order. Finally, the
contempt order sanctions the Husband with incarceration but does not
contain a separate, affirmative finding that he had the present ability to
comply with the purge.

   For these reasons, we reverse the contempt order and remand the
case to the trial court for further proceedings. See Connolly, 543 So. 2d
at 357.

   Reversed and Remanded.

WARNER and MAY, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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