Victor Moskalenko v. Scott Israel, Sheriff of Broward County , 162 So. 3d 131 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VICTOR MOSKALENKO,
Petitioner,
v.
SCOTT ISRAEL, SHERIFF OF BROWARD COUNTY, et al.
Respondents.
No. 4D14-3299
[December 10, 2014]
Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Mark A. Speiser, Judge;
L.T. Case No. 10-3358.
Arthur R. Rosenberg of Rosenberg & Pinsky, Fort Lauderdale, for
petitioner.
Terrence O. Lynch, Senior Assistant General Counsel, Fort Lauderdale,
for respondent Scott Israel, Sheriff of Broward County.
Bruce A. Katzen and Jamie Zuckerman of Kluger, Kaplan, Silverman,
Katzen & Levine, P.L., Miami, for respondents Michael Zonenashvili and
Neil Zonenashvili.
Alan B. Cohn of Greenspoon Marder, P.A., Fort Lauderdale, for
respondent Amir Oren, Personal Representative of the Estate of Sofi
Moskalenko-Kemelman.
PER CURIAM.
We grant the petition for writ of habeas corpus filed in this case without
prejudice to the trial court issuing an order that complies with Bowen v.
Bowen, 471 So. 2d 1274 (Fla. 1985). “[I]ncarceration cannot be imposed
upon a civil contemnor for willfully failing to comply with a court order
unless the court first determines that the contemnor has the present
ability to purge himself of contempt.” Id. at 1278.
Even if a contemnor’s own actions caused him to lack the ability to pay,
he may not be incarcerated indefinitely for civil contempt if he lacks the
ability to pay the purge. Elliott v. Bradshaw, 59 So. 3d 1182 (Fla. 4th DCA
2011). In this case, the written contempt order provides that the petitioner
may purge by tendering to the personal representative of his deceased
wife’s estate the total net proceeds from the sale of the real property in
question, with satisfactory documentation that the amount accurately
reflects the net proceeds. However, the order does not contain a finding
that the petitioner has the present ability to comply with the purge
provisions.
Accordingly, petitioner shall be released from custody unless the trial
court enters an order that complies with Bowen by 5:00 p.m. on the third
business day following the date of issuance of this opinion. This decision
does not preclude further civil contempt proceedings or criminal contempt
proceedings if appropriate. See Elliot, 59 So. 3d at 1184. We will entertain
no motions for rehearing and the clerk is directed to issue the mandate
forthwith.
Petition Granted.
STEVENSON, CONNER and FORST, JJ., concur.
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