# Third District Court of Appeal

State of Florida

Opinion filed February 11, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D14-1122

Lower Tribunal No. 12-26981

________________



### Patrick Winton,

Appellant,

vs.



### Candice Saffer,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, George A.

Sarduy, Judge.

Chantale L. Suttle and Holly A. Aliprandi, for appellant.

Hoffman, Larin & Agnetti, and John B. Agnetti, and Armand Murach, for

appellee.

Before SALTER, EMAS and FERNANDEZ, JJ.

SALTER, J.Patrick Winton appeals a final order finding him in contempt for failing to

pay family support arrearages of $173,371.00, setting a purge amount of

$38,800.00, and directing him to show cause why he should not be incarcerated if

he failed to pay the purge amount on or before April 30, 2014. The order was

entered following earlier proceedings in which jurisdiction over the parties’ 2010

California dissolution of marriage action and support orders were recognized in the

circuit court in Miami with the consent of the California court, and in which the

Miami court subsequently granted the appellee/former wife’s petition to relocate

with the parties’ children to Brazil. 1 The trial court conducted evidentiary hearings

on the issues of non-payment and contempt before entering the order under review.

Although we find substantial, competent evidence to support the court’s

findings that the former husband failed to make support payments as required

despite an apparent ability to do so, the record does not disclose the calculations

and evidence establishing the commencement of the arrearages, the total unpaid

balance, and the computation of the purge amount. As one example, the former

wife’s August 2013 motion for contempt and sanctions alleges that the former

husband failed to pay $4,200.00 per month since July 2012 (the date of entry of the

California judgment requiring such payments), paying “sporadically or not at all.”

1 The circuit court’s 16-page final judgment on the relocation petition, which was

not appealed, includes findings regarding the appellant’s ability to pay expenses at

a resort averaging $4,000 to $8,000 a month, while not paying $4,200 per month in

support as ordered in the dissolution action.

2The maximum arrearage for the 22 months from that date through the date of the

order under review would be $92,400.00, 2 an amount considerably different than

the $173,371.00 awarded in the order (and also different than the $151,616.00

verbally claimed by the former wife’s counsel during the evidentiary hearings),

and that $92,400.00 computation is without crediting any “sporadic” payments. A

spreadsheet or written breakdown of the computations was not admitted into

evidence and is not before us. The former husband testified that if he owed any

amount it could not exceed $89,000.00.

The amount awarded thus exceeds the amount calculable on the record

before us and exceeds the amount recoverable based on the former wife’s

pleadings. Relief exceeding that which was pled is impermissible. Bull Motors,

L.L.C. v. Brown

, 39 Fla. L. Weekly D2317 (Fla. 3d DCA Nov. 5, 2014).

Whatever computations or spreadsheets may have been exhibited to the trial

court to justify the dollar amounts in the order under review should, on remand, be

moved into evidence and made a part of the record. As to the purge amount, the

court must “make a separate, affirmative finding that the contemnor possesses the

present ability to comply with the purge conditions,” Bowen v. Bowen

, 471 So. 2d

1274, 1279 (Fla. 1985), and the amount itself must be supported by substantial,

competent evidence.

2 An additional amount for prejudgment interest on the months of arrearage might

increase that computation by a few thousand dollars.

3The order is reversed in part and remanded for further proceedings to

substantiate the net amount of any arrearage and the purge requirement, and to

provide specific evidence supporting the finding that the former husband has a

present ability to pay the purge amount.

Other issues raised by the former husband are without merit and do not

warrant detailed analysis.

Reversed in part and remanded.

4