2D04-5016 / Buchanan v. Buchanan

SUPREME COURT CASES

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State: Florida

Court: Florida Southern District Court

Docket No: 2D04-5016

Case Date: 10/07/2005

Plaintiff: 2D04-5016 / Buchanan

Defendant: Buchanan

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MICHAEL J. BUCHANAN,                                                                 )
)
Appellant,                                                                           )
)
v.                                                                                   )   Case No.   2D04-5016
)
MARY PULLIAM BUCHANAN,                                                               )
)
Appellee.                                                                            )
)
________________________________ )
Opinion filed October 7, 2005.
Appeal from the Circuit Court for
Polk County; James A. Yancey, Judge.
Robert L. Valentine, Lakeland, for
Appellant.
Douglas H. Smith of The Smith Law Group,
P.A., Lake Alfred, for Appellee.
SILBERMAN, Judge.
In this postdissolution proceeding, Michael J. Buchanan (the Former
Husband) appeals a civil contempt order.   Because the record does not contain
competent, substantial evidence to support the trial court's finding of the Former
Husband's present ability to pay the $10,000 purge amount, we reverse.

The trial court found the Former Husband in contempt for failure to pay
previously ordered attorney's fees of $10,000 to the attorney for Mary Pulliam Buchanan
(the Former Wife).   In the contempt order, the trial court further found that the Former
Husband had the present ability to pay $10,000, sentenced him to 179 days in jail, and
allowed him to purge the contempt and be released from jail with the payment of
$10,000.
In order to impose incarceration for civil contempt, the trial court must find
"that the contemnor has the present ability to purge himself of contempt."   Bowen v.
Bowen, 471 So. 2d 1274, 1277 (Fla. 1985).   Thus, the contemnor must have "the
present ability to pay from some available asset[.]"   Id.   Here, the trial court found that
the Former Husband had various assets totaling $14,000 and the present ability to pay
$10,000 from those assets.   The record does not support this finding.
Most significant is the trial court's finding that the Former Husband had
$9200 available to him in corporate stock.   No one at the contempt hearing testified to
the value of the Former Husband's corporate stock; rather, the trial court relied on the
Former Husband's corporate tax return to support its finding.   A review of the tax return,
however, reflects that it lists "[t]otal liabilities and shareholders' equity" of $9200.   The
tax return lists the stock value at only $1000.
Thus, the record does not contain competent, substantial evidence to
support the trial court's finding that the Former Husband had the present ability to pay
$10,000.   Accordingly, we reverse the contempt order.
Reversed.
CASANUEVA and CANADY, JJ., Concur.
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