Divorce In North Palm Beach, FL; Child Support

In a divorce proceeding involving the nonpayment of child support, the initial judicial determination creates a rebuttable presumption that there is an ability to pay. In Fuller v. Fuller, the Florida Court of Appeal recently stated: “Jeffrey Fuller, the former husband, appeals an amended order on Nancy Dubay, the former wife’s motion for civil contempt. We reverse that portion of the trial court’s order finding him in contempt, but we affirm the remainder of the order without comment… 

‘ [T]he initial order or judgment directing a party to pay support or alimony is predicated on an affirmative finding that the party has the ability to pay. This initial judicial determination creates, in subsequent proceedings, a presumption that there is an ability to pay. In a civil contempt proceeding for failure to pay child support or alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has foiled to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.”

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