02-3171 SIBLEY V. SIBLEY

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State: Florida

Court: Florida Third District Court

Docket No: 02-3171 SIBLEY V. SIBLEY

Case Date: 12/23/2002

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002

MONTGOMERY BLAIR SIBLEY, Appellant, vs. BARBARA SIBLEY, Appellee. ** ** **

**

CASE NO. 3D02-3171 LOWER TRIBUNAL NO. 94-18177 **

Opinion filed December 23, 2002 An Appeal from the Circuit Court for Dade County, Maxine Cohen Lando, Judge Billbrough & Marks and G. Bart Billbrough, for appellant. Jay M. Levy; Bette E. Quiat, for appellee. Before SCHWARTZ, C.J., and COPE and GODERICH, JJ. SCHWARTZ, Chief Judge. The primary point of the appellant, who is incarcerated for indirect contempt because he failed to discharge an obligation for a large amount of admittedly past due child support--of which he has paid not a single cent--is that the record does not

support the express finding below 1

that he has the present We disagree.

ability to pay the purge amount of $100,000.00.

We do so because, as the record demonstrates Sibley may command, simply by asking, the payment of the purge amount through his very wealthy father2--who has in effect given many hundreds of thousands of dollars to Mr. Sibley for any and every purpose except the discharge of this particular obligation. Among these are the payment of $250,000.00 cash for a business which nominally supports him, $200,000.00 in the "forgiveness" of a "loan" from the father, and large sums directly for the support of the appellant's present wife3 and his other child. We are convinced that they include also very substantial sums in legal fees and costs in order to avoid payment,4 as well as the

1

The presence of such a finding is indispensable to the validity of the order. See Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985).
2

Notwithstanding that the appellant has adamantly refused to reveal many of his financial records--which in itself raises a strong presumption against him, City of Miami v. Rantanen, 645 So. 2d 4 (Fla. 1st DCA 1994)--the record shows substantial assets, although admittedly not in the purge amount, in his own name.
3

The senior Sibley purchased a three-bedroom, three-story town home in Maryland in which the son, his new wife, and child lived and where he now lives alone. Although there is no record either that such a payment was ever made or what the source of such a payment may have been, see supra note 2, the rent supposedly due the father is $2500.00 per month.
4

The following is only a partial recounting of the litigation he has unsuccessfully generated to achieve that end: 2

maintenance of the present expensive proceeding to secure his release from prison without having to meet his adjudicated duty to support these children, even in the smallest part. His

failure to do so stems, as the record again shows, and as the trial judge observed only from a stubborn, self-immolating

hatred of and vendetta against his ex-wife, who also happens to be the mother of their children, and not from any "inability to pay." In these circumstances, which demonstrate the very

epitome of a wilful, contemptuous refusal to obey a binding order of court, the rule that all sums from whatever source available to the contemnor-obligor must be considered to

determine his "ability to pay" is peculiarly relevant.

Koll v.

Koll, 812 So. 2d 529 (Fla. 4th DCA 2002); Mallardi v. Jenne, 721 So. 2d 380 (Fla. 4th DCA 1998); Pompey v. Cochran, 685 So. 2d

Sibley v. Sibley, 823 So. 2d 785 (Fla. 3d DCA 2002)(table); Sibley v. Sibley, 816 So. 2d 136 (Fla. 3d DCA 2002); Sibley v. Sibley, 815 So. 2d 673 (Fla. 3d DCA 2002), review denied, No. SC02-1309 (Fla. Nov. 22, 2002)(table); Sibley v. Sibley, 814 So. 2d 1054 (Fla. 3d DCA 2002)(table); Sibley v. Sibley, 793 So. 2d 959 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 803 So. 2d 738 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 795 So. 2d 71 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 791 So. 2d 481 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 771 So. 2d 1175 (Fla. 3d DCA 2000)(table); Sibley v. Sibley, 751 So. 2d 586 (Fla. 3d DCA 2000)(table); Sibley v. Sibley, 733 So. 2d 529 (Fla. 3d DCA 1999)(table); Sibley v. Sibley, 732 So. 2d 1079 (Fla. 3d DCA 1999)(table); Sibley v. Sibley, 725 So. 2d 1273 (Fla. 3d DCA 1999); Sibley v. Sibley, 710 So. 2d 1017 (Fla. 3d DCA 1998); Sibley v. Sibley, 34 Fed.Appx. 969, ___ F.3d___ (11th Cir. 2002)(table). 3

1007 (Fla. 4th DCA 1997); Rose v. Ford, ___ So. 2d ___ (Fla. 4th DCA Case no. 4D02-954, opinion filed, November 27, 2002)[27 FLW D2560](dictum); see also Klein v. Klein, 122 So. 2d 205 (Fla. 3d DCA 1960); Silvers v. Silvers, 274 So. 2d 555 (Fla. 3d DCA 1973); 1996). Silberman v. Silberman, 670 So. 2d 1109 (Fla. 3d DCA Its application compels the rejection of the appellant's

argument that, on the merits, he should not be in jail for civil contempt. In our judgment, he is in the right place for the

right reason.5 Affirmed. GODERICH, J., concurs.

5

In the light of this conclusion, we consider that the appellant's other point, which claims defects in the orders below, see Fla.Fam.L.R.P. 12.615 (2002), does not present harmful error. Gonzalez v. Gonzalez, ___ So. 2d ___ (Fla. 3d DCA Case no. 3D021922, opinion filed, December 23, 2002); Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001). 4

Sibley v. Sibley Case No. 3D02-3171 COPE, J. (dissenting). The incarceration order was entered on the theory that the former husband, Montgomery Blair Sibley, has sufficient personal property to sell so as to obtain the $100,000 purge amount. As

the record does not adequately support that proposition, we should remand to set a proper purge condition.

I. The parties divorced in 1994. primary residential parent. area. It was agreed by the parties that if the former husband moved away, the three children of the marriage would remain in the Miami area with Barbara Sibley, the former wife. In that The former husband was the

Both parents lived in the Miami

event, the former husband was to pay child support of $4,000 per month.6 The former husband is a member of The Florida Bar who practiced law in Miami. husband remarried. In Subsequent to the divorce, the former 2000, the former husband moved to

6

There was also an agreement regarding the payment of tuition for the children at private schools and college. Those issues are not involved in the present appeal. 5

Maryland.

This triggered the obligation to pay $4,000 per month

in child support. The former husband never paid any of the child support. After protracted enforcement proceedings in the trial court in which the former husband represented himself,7 the trial court entered a civil contempt order providing for the incarceration of the husband. The purge amount was set at $100,000.

The former husband has appealed. By unpublished order, this court ruled that the former husband could obtain a stay of the order pending appeal by posting a $100,000 bond. The former

husband has not posted the bond and is incarcerated. II. It seems to me that in footnote two of the majority opinion, reversal. the majority concedes the point which requires

Footnote two states that the former husband has assets, although admittedly not in the purge

"substantial

amount, in his own name." added).

Majority opinion at 2 n. 2 (emphasis

The incarceration order in this case was entered precisely on the theory that the former husband does have $100,000 in assets in his personal possession with which to satisfy the

7

It appears the first time the former husband hired counsel was for this appeal. 6

purge amount. does not

The majority opinion concedes that the record support the trial court's view of the

adequately

matter. The former wife testified that the former husband received in the dissolution of marriage various items of silver and artwork. She placed a value of $10,000 on one silver tray, but

the record contains no valuation of any of the other items, and there is a dispute about the former husband's continuing

ownership of some of the items. Under Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985), the court must determine whether the contemnor possesses the ability to pay the purge amount. Id. at 1279. In making this

determination, "the trial court is not limited to the amount of cash immediately available to the contemnor; rather the court may look to all assets from which the amount might be obtained." Id. (emphasis in original). In the present situation, the trial court has at least two alternatives. One is to obtain reasonable estimates of value of possession.

the items which remain in the former husband's

Because the property is in Maryland, the distance and expense of appraisal may make this an unattractive alternative. The speedier alternative would be to modify the purge condition to allow release of the former husband upon turnover 7

of the assets to a proper agent for the wife in Maryland.

The

wife would then be required to sell those items of personal property in a commercially reasonable manner. would avoid the delay and expense of appraisal. While the trial court's order does not say in so many words that the $100,000 purge amount was supposed to come from the personal property of the former husband, that is the only This approach

reasonable interpretation of the order.8

Further, in her brief

in this court, the former wife has defended the order on the theory that the former husband has sufficient assets to pay the purge amount. The former wife makes reference to the assets of

the former husband's father--Harper Sibley, Jr.--only in passing in a footnote. Appellee's brief at 20 n. 12.

We should reverse the incarceration order and remand for the trial court to enter a revised purge condition, which the former

8

Under Family Law Rule 12.615(e), the incarceration order should specify the intended source of the purge amount: (e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor's present ability to comply . The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. (Emphasis added). 8

husband would have the present ability to satisfy. III. The majority opinion takes the position that the former husband should obtain the purge amount from his father, Harper Sibley, Jr. This was not the basis of the trial court's ruling.

In ruling as it has, the majority opinion relies on the "tipsy coachman" doctrine, or "right for the wrong reason" rule. The Florida Supreme Court has said: [Respondent] attempts to invoke the "tipsy coachman" doctrine, which permits a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons so long as "there is any basis which would support the judgment in the record." Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999). As this Court recently reiterated in Robertson v. State, 27 Fla. L. Weekly S 829 (Fla. Oct. 10, 2002), the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law. See Robertson v. State, 27 Fla. L. Weekly at S 830; see also State Dept. of Revenue ex rel. Rochell v. Morris, 736 So. 2d 41, 42 (Fla. 1st DCA 1999). On that basis, the doctrine cannot be applied in this case because the record does not provide an adequate basis for us to reach such materiality conclusion as a pure matter of law. State Farm Fire and Cas. Co. v. Levine, No. SC01-2085, at 4-5 (Fla. Dec. 19, 2002). In the present case the trial court heard testimony from the former husband's father, Harper Sibley, Jr., in July 2002. The

trial court limited the inquiry to two specific issues: the fact 9

that

Mr.

Sibley

had

stopped

paying

the

tuition

for

the

grandchildren (the children of this marriage), and what gifts or property he had given to the former husband. It is telling that the trial court itself restricted the amount of inquiry which could be made of Mr. Sibley, and after hearing the testimony, did not base the purge amount on Mr. Sibley's ability to pay. The trial court fashioned the contempt

order and purge amount based on the trial court's conclusions regarding the former husband's ability to pay. If there is a theory on which Mr. Sibley can be considered a source of funds to satisfy the purge condition, then proper procedure requires that issue to be first addressed in the trial court. With regard to the merits, there is no question but that over the years, the former husband, the former wife, and the children Sibley. of the marriage all enjoyed large gifts from Mr.

As a general proposition, however, this court has

rejected the idea that the availability of loans or gifts from wealthy relatives translates into the present ability to pay a purge amount. The former husband relies on Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992), which said: The purpose of a civil contempt proceeding is to 10

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). Where incarceration is under consideration as a possible remedy for a civil contempt, there must be "a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order." Id. at 1279. While making that determination, the court may look to all of the contemnor's assets from which the amount might be obtained. Id. See Russell v. Russell, 559 So. 2d 675 (Fla. 3d DCA 1990). In the present case, it appears the trial court based its finding of present ability to pay, and the finding of contempt, on the general master's outrageous theory that Perez could obtain a loan from his relatives. The findings of the general master, upon whose report the trial court relied, stated in part: The General Master finds that the Respondent/Husband has the superior ability to pay the Petitioner/Wife's attorney's fees and costs as the testimony showed that he can readily borrow the funds from relatives. . . . . It is clear that under Bowen, the instant inquiry must be directed to the contemnor's own assets, not those of his relatives. Thus, there must be a new hearing. Russell, 559 So. 2d at 676. As noted in Russell, the Bowen case envisions a two-stage inquiry in civil contempt proceedings: first, a determination of whether the respondent has willfully violated the court order, id. at 1278-79; second, the decision as to what remedy is appropriate. Id. at 1279. Perez, 599 So. 2d at 683; see also Sol v. Sol, 656 So. 2d 206 (Fla. 3d DCA 1995).9

9

Perhaps in this case or an appropriate case we should revisit Perez. By statute, Texas requires an obligor in a child support 11

Up to a point, the former husband's reliance on Perez is well taken. The mere fact that Mr. Sibley has in the past made

large gifts to the former husband and family members is not (without more) sufficient to allow consideration of Mr. Sibley's assets in setting a purge amount for the former husband. this case, however, there are other circumstances to In be

considered. We are dealing with child support in this case. The court's orders must be respected, and the court cannot allow child support orders to be interfered with. In the present case Mr. Sibley and the former husband are in business together. Mr. Sibley purchased a business for The business and other

$250,000 which is operated by the former husband. manufactures custom carrying cases for

computers

sensitive equipment. former husband.

There are three employees besides the

The former husband's net salary is $2,500 per month.

The

business pays another $2,500 per month for the rental of a house owned by Mr. Sibley, in which the former husband resides. The

record reasonably supports the conclusion that the business also

case to attempt to borrow the funds to pay the child support, or arrearage, from any appropriate available source, including relatives. See Tex. Fam. Code Ann.

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