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 

 1The 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. 
-2- 

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, 

 2The 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. 
-3- 

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. 
-4- 

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.