                  NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                         MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL

                                              OF FLORIDA

                                              SECOND DISTRICT


JEFFREY R. FULLER,                  )
                                    )
           Appellant,               )
                                    )
v.                                  )                       Case No. 2D13-2962
                                    )
NANCY LORRAINE ELIZABETH DUBÈ       )
FULLER n/k/a NANCY LORRAINE         )
ELIZABETH DUBAY,                    )
                                    )
           Appellee.                )
___________________________________ )


Opinion filed July 30, 2014.

Appeal from the Circuit Court for Pinellas
County; Catherine M. Catlin, Associate
Judge.1

Jeffrey R. Fuller, pro se.

Nancy Lorraine Elizebeth Dubè Fuller,
pro se.


MORRIS, Judge.

              Jeffrey Fuller, the former husband, appeals an amended order on Nancy

Dubay, the former wife's motion for civil contempt. We reverse that portion of the trial


              1
                The Florida Supreme Court assigned Judge Catlin of the Thirteenth
Judicial Circuit to proceed as a temporary judge of the Sixth Judicial Circuit in the matter
between these parties.
court's order finding him in contempt, but we affirm the remainder of the order without

comment.2

              The parties married in 1997 and have three adult children. In 2007 a final

judgment was entered dissolving the marriage. In 2008 a supplemental final judgment

was entered ordering the former husband to pay $4500 a month in permanent alimony

to the former wife. In 2012 the trial court entered an order finding the former husband in

contempt for failing to pay the court-ordered alimony to the former wife. This court

"affirm[ed] without further comment the trial court's finding that the [f]ormer [h]usband

had the present ability to pay the required sums and its holding him in contempt for

failing to do so." Fuller v. Fuller, 129 So. 3d 394, 396 (Fla. 2d DCA 2013). But we

reversed for the trial court to strike language finding that the former husband had hidden

sources of income because that specific issue had not been argued below. Id.

              In 2013, the former wife filed another motion for contempt. The trial court

held a hearing on May 20, 2013, and orally pronounced that "the [m]otion for [c]ontempt

is denied for lack of proof of a purge." On May 29, 2013, the trial court entered a written

order on the former wife's motion for contempt finding the former husband in contempt

and entering a money judgment for the former wife. The trial court, however, denied the

former wife's request to incarcerate the former husband on the basis that "the [f]ormer

[w]ife failed to establish a purge amount that the [f]ormer [h]usband could pay." The

former husband filed a motion for rehearing and reconsideration, and on June 19, 2013,




              2
               The former wife also filed a motion to disburse arrearages. The trial court
denied the former wife's motion to disburse arrearages but granted a money judgment
against the former husband in the amount of $90,314.46.
                                            -2-
the trial court entered an amended order, reducing the amount of arrearages and the

money judgment to $90,314.46.

              On appeal, the former husband argues that the trial court erred in finding

him in contempt in its written order because the former wife did not present evidence of

the former husband's present ability to pay the court-ordered alimony and because the

trial court orally denied the former wife's motion for contempt.

              The amended written order finding the former husband in contempt is

inconsistent with the trial court's oral ruling denying the motion for contempt. It appears

that the trial court may have merged the distinct issues to be addressed in a civil

contempt proceeding in family support matters set forth in Bowen v. Bowen, 471 So. 2d

1274, 1278 (Fla. 1985).

              [T]he initial order or judgment directing a party to pay
              support or alimony is predicated on an affirmative finding
              that the party has the ability to pay. This initial judicial
              determination creates, in subsequent proceedings, a
              presumption that there is an ability to pay. In a civil
              contempt proceeding for failure to pay child support or
              alimony, the movant must show that a prior court order
              directed the party to pay the support or alimony, and that the
              party in default has failed to make the ordered payments.
              The burden of producing evidence then shifts to the
              defaulting party, who must dispel the presumption of ability
              to pay by demonstrating that, due to circumstances beyond
              his control which intervened since the time the order
              directing him to pay was entered, he no longer has the ability
              to meet his support obligations. The court must then
              evaluate the evidence to determine whether it is sufficient to
              justify a finding that the defaulting party has willfully violated
              the court order. Once the court finds that a civil contempt
              has occurred, it must determine what alternatives are
              appropriate to obtain compliance with the court order. If
              incarceration is deemed appropriate, the court must make a
              separate, affirmative finding that the contemnor possesses
              the present ability to comply with the purge conditions set
              forth in the contempt order.

                                             -3-
Id. (emphasis added).

              We note that the record supports a finding of contempt because the

former wife satisfied her burden and the former husband failed to dispel the

presumption that he had the ability to pay. See Driggers v. Driggers, 127 So. 3d 762,

764 (Fla. 2d DCA 2013) ("Unquestionably, the final judgment of dissolution created a

presumption that [the former husband] has the ability to pay alimony. He bears the

burden to show that he can no longer pay due to changed circumstances."). Yet, the

trial court specifically stated that "the [m]otion for [c]ontempt is denied for lack of a proof

of purge." It appears that the parties and the trial court were concerned only with

whether the former husband had the ability to pay the substantial purge amount and

whether the trial court could order incarceration. It is not clear if the trial court found that

a civil contempt had not occurred or if a finding of civil contempt is implicit in the trial

court's ruling on the purge/incarceration issue and the entry of a money judgment

against the former husband; accordingly, we reverse the portion of the order finding the

former husband in contempt and remand for the trial court to make findings in

accordance with the procedure set forth in Bowen.

              Affirmed in part, reversed in part, and remanded.



DAVIS, C.J., and CASANUEVA, J., Concur.




                                              -4-
