         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


KEVIN CARTER,

              Appellant,

 v.                                                      Case No. 5D17-1189

DEBORAH HART F/K/A
DEBORAH CARTER,

              Appellee.

________________________________/

Opinion filed March 16, 2018

Appeal from the Circuit Court
for Osceola County,
Diana M. Tennis, Judge.

Moses R. Dewitt, of Dewitt Law Firm,
P.A., Orlando, for Appellant.

No Appearance for Appellee.


LAMBERT, J.

       Kevin Carter (“Former Husband”) appeals an order denying his motion for

temporary relief regarding his alimony obligations and granting Deborah Hart’s (“Former

Wife”) motion for civil contempt for his failure to pay alimony. We affirm.

       The parties’ marriage was dissolved in 2013 with the final judgment ordering

Former Husband to pay Former Wife $750 per month in permanent periodic alimony. In

February 2016, Former Husband filed a supplemental petition to reduce or eliminate his
alimony payment based upon two alleged substantial changes in circumstances since the

final judgment. Shortly thereafter, Former Wife filed a pro se motion for contempt because

Former Husband had stopped paying his monthly alimony.               Following a hearing on

Former Wife’s motion, the court deferred its ruling and provided Former Husband leave

to file an amended supplemental petition for modification of alimony, which he did.

Subsequently, Former Husband also filed a motion for temporary relief to reduce or

eliminate alimony.

       The trial court held a simultaneous hearing on Former Husband’s motion for

temporary relief and Former Wife’s motion for contempt. Both parties were present and

testified at the hearing, and Former Husband was represented by counsel. The court

denied Former Husband’s motion, without prejudice, finding that some aspects of Former

Husband’s testimony were “not particularly credible” and that he “had not proven a

substantial permanent involuntary change of circumstances” to justify a reduction in his

alimony payment. The court granted Former Wife’s motion, finding Former Husband to

be in willful contempt of the final judgment for failing to pay alimony while having the ability

to do so. The court determined that Former Husband’s alimony arrearages totaled

$7096.28 and set that amount as the purge to be paid. The court order also provided

Former Husband with forty days to pay the purge amount1 and that if he failed to do so,

Former Husband was to be “incarcerated indefinitely,” until the purge was paid.

       On appeal, Former Husband first argues that the trial court erred in holding a

hearing on Former Wife’s later-filed motion for contempt for nonpayment of support while

his supplemental petition for a downward modification of alimony was pending. See



       1   Neither party contests this provision.


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potential incarceration as a sanction for contempt. At no point during the hearing did

Former Husband object or otherwise argue that this sanction or remedy for his potential

contempt was unavailable because Former Wife did not request it in her motion.5 See In

re D.J., 9 So. 3d 750, 755 (Fla. 2d DCA 2009) (finding that due process concerns are

alleviated through implied consent, when arguments and evidence are presented on the

issue at trial without objection by the opposing party (citing W.S. v. Dep’t of Child. &

Fams., 961 So. 2d 1131, 1132 (Fla. 4th DCA 2007); K.S. v. Dep’t of Child. & Fams., 940

So. 2d 577, 578 (Fla. 5th DCA 2006))).

      For these reasons, we affirm the order under review in all respects.

      AFFIRMED.

PALMER and WALLIS, JJ., concur.




      5   Former Husband’s counsel below is also his counsel on appeal.


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       Excluding any reference by the trial court in its order regarding Former Husband’s

ability to use credit cards to pay his purge, the court nevertheless found that Former

Husband’s available assets exceeded the purge amount, thus evidencing his present

ability to pay the purge. See Bowen, 471 So. 2d at 1279 (“In determining whether the

contemnor possesses the ability to pay the purge amount, the trial court is not limited to

the amount of cash immediately available to the contemnor; rather, the court may look to

all assets from which the amount may be obtained.”). The court also provided in its order

that if Former Husband had not paid his purge within forty days and was thereafter

incarcerated, Former Husband was to be brought back before the court within forty-eight

hours for a hearing to determine his continuing ability to pay the purge.3 Under these

facts and circumstances, we find no abuse of discretion.

       Finally, Former Husband asserts that his due process rights were violated in two

ways because Former Wife did not specifically request incarceration in her pro se motion

for contempt and neither her motion for contempt nor the notice of hearing complied with

Florida Family Law Rule of Procedure 12.615(b) because the following language from

this rule was lacking:

                FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
                THE COURT ISSUING A WRIT OF BODILY ATTACHMENT
                FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY
                BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING
                IS HELD.

Addressing the latter assertion, our record does not reveal whether this caveat was

provided to Former Husband in any notice of hearing. Regardless, Former Husband is




       3   Former Husband has not contested this provision of the order.



                                             4
not entitled to relief. In Martyak v. Martyak, 881 So. 2d 48 (Fla. 4th DCA 2004), the Fourth

District explained that at a civil contempt hearing, the trial court proceeds differently

depending upon whether or not the alleged contemnor is present for the hearing. 881

So. 2d at 49. If present, the court is to determine whether the alleged contemnor has the

present ability to pay and willfully failed to pay. Id. “[I]f the alleged contemnor is not

present, then the court is to set a reasonable purge amount and may issue the writ of

bodily attachment that was threatened in the notice [required by rule 12.615(b)].” Id. at

49–50. However, if the writ is issued, the contempt order must direct that upon execution

of the writ, the alleged contemnor is to be brought before the court within forty-eight hours

for a hearing on whether he or she has the present ability to pay support and, if so,

whether the failure to pay is willful. Id. at 50 (quoting Fla. Fam. L. R. P. 12.615(c)(2)(B)).

       Here, Former Husband, unlike Mr. Martyak, was present with counsel at the

contempt hearing and was provided with his due process right to present evidence as to

his present ability to pay and whether his failure to pay alimony was willful.4 Thus, the

failure, if any, to include the above language from rule 12.615 in Former Wife’s motion for

contempt did not adversely affect Former Husband’s due process rights to notice and an

opportunity to be heard and present evidence. Finally, at the start of the contempt

hearing, the trial court unequivocally placed Former Husband on notice that he was facing




       4  As previously stated, Former Husband has not challenged the trial court’s finding
that his failure to pay alimony was willful. Former Husband’s testimony at the contempt
hearing established that shortly after Former Wife filed her motion for contempt, Former
Husband settled a separate, unrelated lawsuit and received just under $24,000 in
settlement proceeds. Former Husband paid nothing towards his arrearages, paid no
further monthly alimony payments, and at the time of the hearing, had almost completely
depleted these funds.



                                              5
potential incarceration as a sanction for contempt. At no point during the hearing did

Former Husband object or otherwise argue that this sanction or remedy for his potential

contempt was unavailable because Former Wife did not request it in her motion.5 See In

re D.J., 9 So. 3d 750, 755 (Fla. 2d DCA 2009) (finding that due process concerns are

alleviated through implied consent, when arguments and evidence are presented on the

issue at trial without objection by the opposing party (citing W.S. v. Dep’t of Child. &

Fams., 961 So. 2d 1131, 1132 (Fla. 4th DCA 2007); K.S. v. Dep’t of Child. & Fams., 940

So. 2d 577, 578 (Fla. 5th DCA 2006))).

      For these reasons, we affirm the order under review in all respects.

      AFFIRMED.

PALMER and WALLIS, JJ., concur.




      5   Former Husband’s counsel below is also his counsel on appeal.


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