DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ARMANDO PRIDA HUERTA,

Appellant,

v.

MONICA A. MORALES GRAJALES,

Appellee.

No. 4D22-796

[February 22, 2023]

Appeal of a non-final order from the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; Dina A. Keever-Agrama, Judge; L.T. 

Case No. 502018DR005834NBFH.

Robert J. Hauser of Sniffen & Spellman P.A., West Palm Beach, for 

appellant.

Stacey D. Mullins and Holly Davidson Schuttler of GrayRobinson, P.A., 

Boca Raton, for appellee.

KLINGENSMITH, C.J.

The husband in a pending divorce case appeals an order granting the 

wife’s motion for civil contempt based on his failure to pay court-ordered 

temporary support.1 We reverse the contempt order because the court 

erred in ordering the husband’s incarceration without providing him an 

opportunity to establish his inability to pay the court-ordered temporary 

support.

Background

The parties’ divorce has been pending since 2018. In November 2019, 

the court entered a temporary support order requiring the husband to 

continue paying all expenses which he had paid during the marriage for 

the parties’ home in Palm Beach County. In August 2021, the court held 

the husband in contempt for failing to pay $143,645.00 in outstanding 

1 The order on appeal also addressed other issues not discussed in this opinion.
2

household expenses and ordered him to pay those expenses within thirty

days. The court also ordered the husband to pay within ten days

$36,343.00 in temporary attorney’s fees and $74,627.30 in temporary 

forensic accounting fees.

The wife later moved for civil contempt to enforce the August 2021 

order, alleging the husband had failed to pay the amounts ordered within 

the time provided. At the contempt hearing, the husband’s attorney did 

not dispute the husband had failed to pay temporary support as ordered 

in August 2021 but sought to call witnesses to establish he did not have 

the present ability to pay. Because the husband did not personally appear 

for the hearing, the court refused to allow the attorney to call these

witnesses.

The court granted the wife’s motion for contempt, and, relying on 

testimony from the wife’s forensic accountant, found the husband had the 

ability to pay support as ordered in August 2021 but had willingly failed 

to do so. The court issued a writ of bodily attachment and set a purge 

amount of $254,474.00. This appeal followed.

Analysis

The husband argues the court violated his due process rights by 

ordering his incarceration without providing him an opportunity to 

establish his present inability to pay temporary support as ordered in 

August 2021. Normally, a contempt judgment will not be overturned 

unless “the trial court either abused its discretion or departed so 

substantially from the essential requirements of law as to have committed 

fundamental error.” Napoli v. Napoli, 142 So. 3d 953, 954–55 (Fla. 4th 

DCA 2014). However, “[w]hether a trial court has complied with the 

guarantees of due process is reviewed de novo.” Ackerman v. HMC Assets, 

LLC, 338 So. 3d 295, 296–97 (Fla. 4th DCA 2022).

An alleged contemnor in a family support matter is presumed to have 

the ability to pay court-ordered support, but it is well established a court 

cannot order incarceration as a sanction for civil contempt without giving 

the alleged contemnor an opportunity to show he does not have the present 

ability to pay support as ordered. See Bowen v. Bowen, 471 So. 2d 1274, 

1278–79 (Fla. 1985); Accardi v. Accardi, 276 So. 3d 10, 13 (Fla. 4th DCA 

2019). “In the area of civil contempt, due process requires that notice to 

the contemnor and an opportunity to be heard precede the imposition of 

sanctions . . . .” Hipschman v. Cochran, 683 So. 2d 209, 211 (Fla. 4th DCA 

1996); see also Chetram v. Singh, 937 So. 2d 716, 719 (Fla. 5th DCA 2006) 

(“Where jail is the sanction for civil contempt, the court must grant the 
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contemnor an opportunity to establish inability to pay before he can be 

incarcerated.”).

Florida Family Law Rule of Procedure 12.615(c)(2)(B) applies when an 

alleged contemnor in a family support matter fails to appear for a contempt 

hearing after being given sufficient notice. Under that rule, if the court 

finds the alleged contemnor has failed to pay court-ordered support, then 

it shall set a reasonable purge amount and may issue a writ of bodily 

attachment. Fla. Fam. L. R. P. 12.615(c)(2)(B). However, if the court issues 

a writ of bodily attachment, it must direct the alleged contemnor be 

brought before the court, within forty-eight hours of execution of the writ, 

for a hearing on whether he has the present ability to pay support and has 

willfully failed to do so. Id.; see Martyak v. Martyak, 881 So. 2d 48, 49–50 

(Fla. 4th DCA 2004).

The court in this case erred in failing to provide the husband with an 

opportunity to establish whether he had the present ability to pay. We 

also note that before doing so, the court did not order the husband’s 

personal appearance at the hearing. Because the husband sent his 

attorney to appear for him at the hearing, his personal non-attendance 

could not, without more, be construed as a willful failure to comply with 

the court’s order. Had the court deemed his non-appearance to be a 

violation of its order, the appropriate remedy would have been to issue a 

writ of bodily attachment and hold a hearing within forty-eight hours of its 

issuance to determine whether he had the ability to pay.

Neither could the husband’s personal non-appearance trigger an 

automatic finding of his ability to pay. Before a court may incarcerate a 

party for failure to pay, the court must inquire into the party’s ability to 

pay and determine whether the party had the ability to pay but willfully 

refused to do so. Cf. Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 2011) 

(“[A]n automatic revocation of probation without evidence presented as to 

ability to pay to support the trial court’s finding of willfulness violates due 

process.”). Accordingly, to support a finding that the violation was willful, 

the wife must present sufficient evidence of willfulness, including that the 

husband has, or has had, the ability to pay. Once the wife has provided 

sufficient evidence of willfulness by a preponderance of the evidence, the 

burden then shifts to the husband to prove the inability to pay by a 

preponderance of the evidence. 

We therefore reverse the order granting the wife’s motion for civil 

contempt. On remand, the court must enter a new order that complies 

with rule 12.615(c)(2)(B) and sets a hearing on the husband’s ability to pay 

the court-ordered temporary support by ordering his personal appearance, 
4

and upon a failure to appear, ordering a writ of bodily attachment to secure 

his attendance.

We affirm as to all other issues raised in this appeal without discussion.

Affirmed in part, reversed in part and remanded.

DAMOORGIAN and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.