Eugenia Bowen and Florida Department Health and Rehabilitative Services v. Frankie L. Bowen

This is a petition to review Bowen v. Bowen, 454 So.2d 565 (Fla. 2d DCA 1984), in which the Second District Court of Appeal held that a civil contempt proceeding was transformed into a criminal contempt proceeding where the trial judge, without regard to the contemnors ability to purge himself of contempt, imposed imprisonment for failure to pay child support on the ground that the contemnor wrongfully used his resources for purposes other than making the court-ordered support payments. The district court reversed the trial courts judgment, concluding that due process required the appointment of counsel and other due process required the appointment of counsel and other due process protections in such a proceeding. We find conflict with Waskin v. Waskin, 452 So.2d 999 (Fla. 3d DCA 1984).{/Cite} For the reasons expressed, we agree with the district court that the record under review fails to establish that the respondent had the present ability to pay the arrearage and that, under the facts of this case, the respondent was improperly incarcerated for civil contempt. We recognize the need to explain our decisions in Faircloth v. Faircloth, 339 So.2d 650 (Fla. 1976); Garo v. Garo, 347 So.2d 418 (Fla. 1977); Pugliese v. Pugliese, 347 So.2d 422 (Fla. 1977); Lamm v. Chapman, 413 So.2d 749 (Fla. 1982); and Andrews v. Walton, 428 So.2d 663 (Fla. 1983), and harmonize them with multiple district court decisions on this issue. In this opinion, we will attempt to clarify the law with respect to the use of civil and criminal contempt in family support matters.