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eBook details

• Title: Martyak v. Martyak
• Author : In the District Court of Appeal of the State of Florida Fourth District July Term 2004
• Release Date : January 18, 2004
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 59 KB

Description

Stephen N. Martyak appeals an order holding him in contempt for failing to pay alimony and attorney's fees previously ordered, and ordering that he be taken into custody until he pays a purge amount of $54,278.91, the entire arrearage at the time the order was entered. As we found in his prior appeal from a prior contempt order, which was pending when the order on appeal in this case was entered, there was no error in holding him in contempt. However, the order requiring his incarceration must be reversed because it fails to contain a finding of his present ability to pay the purge amount and the basis for such ability. See Martyak v. Martyak, 873 So. 2d 405, 407 (Fla. 4th DCA 2004); Fla. Fam. L. R. P. 12.615(e).1 The other issues presented in this appeal were either not raised below and unpreserved or rejected in his prior appeal. In the present case, the trial court was unable to make a finding of present ability to pay the purge because the former husband did not appear at the contempt hearing. He presented no evidence whatsoever as to his ability to pay. The former wife complains that she did all that she could. If the former husband can escape incarceration simply by not appearing at his contempt hearing, that defeats the holding in Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), which requires the defaulting party to produce evidence to dispel the presumption of ability to pay.

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