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611 So. 2d 47

Docket No. 92-3312.

Cook v. Navarro

Herbert A. COOK, Petitioner, v. Honorable Nick NAVARRO, in his official capacity as Sheriff of Broward County, Florida, and/or his successor in office, Respondent.

District Court of Appeal of Florida

Decided December 23, 1992.

District Court of Appeal of Florida · decided 1992-12-23

Key passage — most relied on by later courts

“Appellant is entitled to a hearing where he has the opportunity to demonstrate that he does not have the ability to pay the substantial purge amount.”

quoted by 1 later decision, including 255 So. 3d 968 - Adams v. Utah Power Sys., LLC

Relies on 471 So. 2d 1274 - Bowen v. Bowen · 574 So. 2d 279 - Laing v. Laing

Good law ✅— No negative treatment on recordhow we know

Decided 1992-12-23

How this case has been cited

Cited by 3 later decisions — most recently September 2018

3 state decisions

10199220002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Charles Wender of Smith, Smith & Wender, P.A., Boca Raton, for petitioner.

¶2Brad S. Bailey, Assistant Legal Counsel, Fort Lauderdale, for respondent.

¶3PER CURIAM.

¶4Petitioner has filed for habeas corpus relief, claiming that he has been incarcerated on an order of civil contempt for failure to pay child support. That order was entered on August 9, 1991, and provided for a purge amount of $51,960.24. In the order the court made a finding of present ability to pay. That finding was the result of the court's prior ruling prohibiting Petitioner from introducing any evidence with regard to financial inability because of his failure to comply with discovery orders.

¶5Petitioner was arrested in November 1992, over a year after the order of contempt which found a present ability to pay. Appellant, a victim of Alzheimer's disease, through counsel requested a hearing on various issues, including the fact that he lacked the present ability to purge himself of the contempt. Opposing counsel objected, and the trial court refused to take evidence on this issue.

¶6Appellant is entitled to a hearing where he has the opportunity to demonstrate that he does not have the ability to pay the substantial purge amount. Bowen*48v. Bowen,471 So.2d 1274 (Fla. 1985), states, "Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply." Id. at 1277. Here, the first order of contempt was entered over a year before appellant's arrest. As in Laing v. Laing,574 So.2d 279 (Fla. 3d DCA 1991), the passing of a substantial period of time between the order of contempt and appellant's seizure compels the court upon petitioner's request to conduct a Bowen hearing on petitioner's present ability to purge himself. We therefore order the trial court to conduct such a hearing within five working days. We would point out, however, that in such hearing the petitioner has the burden of going forward with the evidence. See Laing.

¶7We are also concerned about the competency of the petitioner and would suggest that the trial court may wish to consider application of Rule 1.210(b), Florida Rules of Civil Procedure.

¶8HERSEY and WARNER, JJ., concur.

¶9LETTS, J., dissents without opinion.

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