In the case of Aburos
v. Aburos, 34 So.3d 131 (Fla. 3rd DCA 2010), the Court held
there was no competent evidence that the Former Husband had the present ability
to pay the purge condition.
The Husband was ordered to pay
alimony of $1,700 per month and child support of $1,693 monthly as well as the
$70,000 second mortgage on the former marital residence awarded to the Wife. In
2001, the Husband was held in contempt for failing to make the required
payments, failing to attend a hearing, willfully fleeing the court's
jurisdiction by moving to Israel and dissipating marital assets. The Husband
was ordered to recover funds from an account he had improperly transferred to
his sister. In 2007, the Wife moved for
contempt. Three hearings were held where the Husband testified that he worked
at his sister's jewelry shop for approximately $2,000 per month and had access
to the store's bank account (containing $25,000), although all transactions not
considered "day-to-day" required the approval of his sister. The Wife
testified that the Husband was a talented jewelry designer who used to make
$100,000 per year and had the ability to earn more than his present income. The
court found that the Husband had complete dominion over the operation of the
store, including access to its bank account. The court issued a civil contempt
order containing a purge provision in the amount of $25,000 and ordered that
the husband be taken into custody. The District Court reversed:
"In
the present case, the magistrate found the former husband's testimony not
credible, but that does not excuse the requirement to identify an appropriate
source of funds from which he could pay the purge amount."
