Miller v. Miller

587 So. 2d 601 (1991)

William Dexter MILLER, Appellant,
v.
Karen Ann MILLER, Appellee.

No. 90-2632.

District Court of Appeal of Florida, Fifth District.

October 10, 1991.

Neil G. Paulson, Sr. of Neil G. Paulson, Sr., Orlando, for appellant.

No Appearance for appellee.

GRIFFIN, Judge.

This is the appeal of an order of civil contempt resulting from appellant's continual failure to pay child support. We find no error in the lower court's finding of contempt. However, there are two defects in the order that require reversal. First, neither the order nor the record contains any separate, affirmative finding by the trial court that appellant has the present ability to comply with the purge conditions of the contempt order. In a civil contempt proceeding, a finding of actual ability to purge is essential. Peterson v. Peterson, 553 So. 2d 733 (Fla. 2d DCA 1989). Also, the civil contempt order improperly provides for automatic incarceration in the event of future noncompliance with the court's order without requiring an additional hearing to determine appellant's ability to pay. See Thompson v. Thompson, 576 So. 2d 436 (Fla. 4th DCA 1991); Phillips v. Phillips, 502 So. 2d 2 (Fla. 4th DCA 1986); Hilson v. Hilson, 145 So. 2d 557 (Fla. 3d DCA 1962).

Order QUASHED in part and REMANDED.

COWART and HARRIS, JJ., concur.