DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

D.H., the Father,

Appellant,

v.

T.N.L., the Mother and GUARDIAN AD LITEM PROGRAM,

Appellees.

No. 4D15-3918

[ May 11, 2016 ]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Okeechobee County; Gary L. Sweet, Judge; L.T. Case No. 2012-DP-02.

Lori D. Shelby, Fort Lauderdale, for appellant.

Linda L. Weiksnar of Crary Buchanan, Stuart, for Appellee T.N.L.

No brief filed on behalf of Appellee Guardian Ad Litem Program.

TAYLOR, J.

The father, D.H., timely appeals an order finding him in contempt and 

denying his motion for relief under Florida Rule of Juvenile Procedure 

8.270. We affirm the denial of his motion for relief but reverse the finding 

of contempt.

This case has its genesis in dependency court, where the child was 

adjudicated dependent as to the mother but not the father. The trial court

initially placed the child with the father, but the mother later achieved 

substantial compliance with her case plan and sought reunification with 

the child.

After we reversed an order partially denying the mother’s motion for 

reunification and remanded for a new hearing, see T.N.L. v. Dep’t of 

Children & Families, 132 So. 3d 319 (Fla. 4th DCA 2014), the father 

violated the court-ordered parenting plan. The trial court ordered the 

father to reimburse the mother for travel expenses she incurred when she 

went to Kentucky in an unsuccessful attempt to pick up the child from the 

father for summer timesharing. The court also ordered the father to pay 
2

the mother’s attorney’s fees and costs incurred in connection with her 

emergency motion to enforce timesharing.1 The court later entered an 

order determining the amount of fees and costs, and specifically found that 

the father’s actions giving rise to the fee award were despicable.2

The court ultimately granted the mother’s motion for reunification and 

ordered the parties “to mediate and reach an agreement on child support 

and a parenting plan.”

The mother later moved for contempt, alleging that the father had not 

timely paid the amounts ordered. In response, the father moved for relief 

pursuant to Rule 8.270, arguing, in relevant part, that the fee award was 

void for lack of jurisdiction.

At the hearing on the motions, the court asked the mother’s counsel 

whether it needed to make a finding that the father had the ability to pay.

Her counsel responded that “in terms of sanctions, you do not have to find 

that he has the ability to pay.”

The court entered an order denying the father’s motion for relief under 

Rule 8.270 and finding the father in willful contempt, even though the 

court did not make a finding that the father had the ability to pay. The 

court stated that the father “has thirty days from the date of this Order to 

make payments to the Mother,” and that if the father does not comply, the 

court “may then consider such other and further actions against the 

Father as may be permitted by law.” The father appealed.

As a threshold matter, Rule 8.270(b) allows a court to relieve a party 

from an order or judgment for several reasons, including that “the order 

or judgment or any part thereof is void.” Fla. R. Juv. P. 8.270(b)(4). Here, 

we conclude that the underlying fee award was not void within the 

meaning of Rule 8.270(b), even assuming, arguendo, that the award was 

improper—an issue we do not decide.3 Cf. S. Seas Marine, Inc. v. Saab, 

1 Although Judge Sweet generally presided over the case on remand, Judge Bauer 

was covering Judge Sweet at this hearing and made the initial finding that the 

mother was entitled to attorney’s fees.

2 Judge Sweet entered the order determining the amount of attorney’s fees and 

finding that the father’s conduct was despicable. However, when Judge Bauer 

made the initial finding that the father would be required to pay the mother’s 

attorney’s fees, he declined to refer to the award as a sanction.

3 There was no statutory basis for an award of fees against the father, so the only 

conceivable legal basis for the award was the inequitable conduct doctrine. See
3

585 So. 2d 959, 960 (Fla. 4th DCA 1991) (even if the fee award was 

improper or there was no legal basis for the award, the fee judgment was 

not void for lack of jurisdiction and thus could not be set aside for that 

reason under Rule 1.540). Moreover, without further comment, we affirm 

the denial of relief on all other grounds asserted in appellant’s Rule 8.270 

motion.

We next turn to the trial court’s finding of contempt. “A judgment of 

contempt comes to the appellate court clothed with a presumption of 

correctness and will not be overturned unless a clear showing is made that 

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).

“[T]he purpose of a civil contempt proceeding is to obtain compliance 

on the part of a person subject to an order of the court.” Bowen v. Bowen, 

471 So. 2d 1274, 1277 (Fla. 1985) (emphasis removed). Unlike a criminal 

contempt sanction, civil contempt is not intended to punish. Elliott v. 

Bradshaw, 59 So. 3d 1182, 1184 (Fla. 4th DCA 2011). “While civil 

contempt sanctions do not require the same procedural and constitutional 

protections as criminal contempt, the key safeguard in civil contempt 

proceedings is a finding by the trial court that the contemnor has the 

ability to purge the contempt.” Parisi v. Broward Cty., 769 So. 2d 359, 365 

(Fla. 2000). Thus, “[a] civil contempt sanction is coercive in nature and is 

avoidable through obedience.” Amendments to Fla. Family Law Procedure, 

723 So. 2d 208, 213 (Fla. 1998).

It is well-established that “in order to find an individual in contempt, 

the trial court must find that the contemnor had the ability to comply with 

the previous court order.”4 Dep’t of Children & Families v. R.H., 819 So. 

2d 858, 862 (Fla. 5th DCA 2002). Florida Rule of Juvenile Procedure 

8.286, which governs indirect civil contempt proceedings in dependency 

cases, codifies this rule and sets out detailed procedures that must be 

followed before a person can be found in civil contempt.

Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (“The inequitable conduct 

doctrine permits the award of attorney’s fees where one party has exhibited 

egregious conduct or acted in bad faith.”).

4 In some circumstances (which do not apply here), the previous court order will 

create a presumption that the contemnor had the ability to comply with the order. 

See, e.g., Hernandez v. Frontiero, 73 So. 3d 875, 875 (Fla. 4th DCA 2011) (“The 

final judgment of support created a presumption that the father had the ability 

to pay child support and to purge himself of any subsequent contempt.”).
4

Under Rule 8.286(d)(1), an order finding a person in contempt must 

contain specific findings, including a finding that the alleged contemnor 

had the present ability to comply with a prior court order and willfully 

failed to do so:

An order finding the alleged contemnor to be in contempt must

contain a finding that a prior order was entered, that the 

alleged contemnor has failed to comply with the prior court 

order, that the alleged contemnor had the present ability to 

comply, and that the alleged contemnor willfully failed to 

comply with the prior court order. . . . 

Fla. R. Juv. P. 8.286(d)(1) (emphasis added).

Here, the trial court erred in finding the father in contempt without 

finding that he had the present ability to comply with the orders at issue. 

The court did not make a finding as to whether the father had the present 

ability to pay the amounts ordered. The contempt order under review thus 

fails to satisfy the requirements of Rule 8.286(d)(1). While this issue was 

not preserved, the court departed so substantially from the essential 

requirements of law as to have committed fundamental error. In our view, 

the court’s failure to scrupulously follow the mandates of a procedural rule 

enacted to ensure that the due process rights of alleged contemnors are 

protected meets the standard of fundamental error.

The mother’s principal argument in defense of the contempt order—

that an ability-to-pay requirement itself violates due process by creating a 

two-tiered system in which only those with the ability to pay would have 

to pay a sanction while those without the ability to pay could behave 

outrageously—is wholly unpersuasive. Civil contempt proceedings may 

not be used to create debtors’ prisons. An ability-to-pay requirement is 

therefore necessary to prevent civil contempt proceedings from losing their 

remedial character and becoming punitive. Moreover, those who have the 

ability to pay are not similarly situated with those who do not. 

Accordingly, we reject the mother’s argument that an ability-to-pay 

requirement should not apply to contempt proceedings brought to enforce 

an award of fees imposed as a sanction, as this argument is inconsistent 

with well-established law on civil contempt.

In sum, we affirm the denial of the father’s Rule 8.270 motion, but we 

hold that the trial court committed fundamental error in finding the father 

in contempt of prior orders without finding that the father had the present 

ability to comply with the orders.
5

Affirmed in part, Reversed in part, and Remanded.

CIKLIN, C.J., and KLINGENSMITH, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.