IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

JONATHAN SCOTT NATION,                NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-0829

BRITTANY GENE BOLING,

      Appellee.

_____________________________/

Opinion filed December 8, 2016.

An appeal from the Circuit Court for Bay County.
Brantley S. Clark, Jr., Judge.

Jeffrey P. Whitton, Panama City, for Appellant.

Graham Clarke, Panama City and Clark T. Rogers, Panama City, for Appellee.




PER CURIAM.

      Jonathan Scott Nation (“Nation”) appeals the circuit court’s order adopting a

hearing officer’s recommendation of contempt and incarceration for failure to pay

child support. Nation argues that the contempt order’s finding that he was able to

pay support as ordered is not supported by substantial, competent evidence. We

agree and reverse.
                                          I.

        Pursuant to final judgment dated May 28, 2009, Nation is required to make

monthly child support payments of $620. In January 2015, the Department of

Revenue filed a motion on behalf of the mother, Brittany Boling (“Boling”),

seeking to hold Nation in contempt for failure to make support payments as

ordered. The matter proceeded to a hearing before a hearing officer on January 25,

2016.

        Boling presented evidence that Nation receives substantial income from an

annuity. The terms of the annuity directed that Nation receive monthly payments of

$1,000 from December 1991 through November 2011 and intermittent “spike

payments” thereafter. Nation last received a “spike payment” in February 2012 of

$125,000; the next one will be disbursed in February 2017, for $225,000, with a

final payment of $450,000 due in 2022.

        Boling also submitted two previous contempt orders entered against Nation

for failure to pay support. She testified that in both instances Nation was able to

pay the purge amount the next day. In the first instance, a relative paid the purge

amount; in the second, Nation paid from the February 2012 “spike payment.”

        Nation testified that he is currently self-employed repairing four-wheelers.

He submitted a financial affidavit reflecting a monthly income of $850 and

monthly expenses of $1,903. Nation owns a 2004 Ford Explorer worth $3,000 and

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a mobile home worth $5,000. When asked why he had not made payments, Nation

answered that he was unable to, stating, “I don’t have the money. If I had the

money, I would pay.” He further explained that business had “slowed down” and

that “I’m gonna have to find me a job.”

      The hearing officer issued a recommended order finding that Nation owed

$9,349.28 in arrearages and that he willfully failed to pay this amount while having

had the ability to do so. The hearing officer recommended that Nation be

adjudicated in contempt and incarcerated for 180 days or until he paid the full

amount due. The circuit court adopted the hearing officer’s recommendation and

entered a final judgment of contempt, also imposing a judicial lien on the

forthcoming 2017 payment of $225,000 to cover child support and attorney fees. A

relative paid the purge amount the next day, and Nation was released. *

                                          II.

      A civil contempt order for nonpayment of support must include findings that

the obligor willfully failed to comply with a prior court order for support while

having the ability to make the established payments. See Fla. Fam. L. R. P.

12.615(d)(1). The court’s finding regarding ability to pay will be sustained if it is


*
  Nation’s release does not render this appeal moot. See Gregory v. Rice, 

251, 252 (Fla. 1999) (holding that a habeas corpus petition filed by parent who
was jailed for contempt for nonpayment of support was not mooted by the parent’s
release because the issue is “very likely to recur”).

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supported by competent substantial evidence. Elliott v. Bradshaw, 

,

1185 (Fla. 4th DCA 2011).

      The record here does not provide sufficient evidence to support the court’s

finding that Nation had the present ability to make payments as ordered. While the

court set forth a number of sources from which it believed Nation could have made

his payments, we find that in each case the source was either inadequate, had no

factual basis, or is an asset Nation should not have been expected to liquidate.

      The court first based its finding on Nation’s “employment.” However, the

undisputed evidence showed that during the period in question, Nation was self-

employed earning $850 per month. This was not enough to pay a monthly support

obligation of $620, which amounted to 73% of his income. See Rihl v. Rihl, 

272, 273-74 (Fla. 3d DCA 1999) (stating that support awards amounting to

73% of net income “have commonly resulted in reversal”); Decker v. Decker, 

, 1163-64 (Fla. 4th DCA 1995) (ruling that the court abused its

discretion in awarding wife alimony and child support constituting 76% of

husband’s income); Thomas v. Thomas, 

(Fla. 4th DCA 1982)

(reversing alimony and child support award that amounted to 58% of husband’s net

income).

      The court also found that Nation had a “mobile home and land,” but this

finding is without a factual basis. The undisputed evidence demonstrated that

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Nation does not own the land on which his mobile home is located. He consistently

testified that the land belongs to his father, and Boling did not present any evidence

to the contrary.

      Third, the court found that Nation receives “annuity income” from which he

could have made payments. However, the next scheduled annuity payment is for

February 2017; until then, he will not receive any funds from the annuity.

Moreover, any suggestion that he should have proceeds left over from the annuity

payment in February 2012 is mere speculation and not evidence. Shelton v.

Shelton, 

, 181 (Fla. 2d DCA 2007) (“The magistrate made a finding

that the former husband ‘should have’ proceeds remaining from the sale of his

home; however, the trial court abused its discretion in adopting that finding

because it was based on speculation rather than evidence.”).

      Finally, the court pointed to Nation’s mobile home worth $5,000 and truck

worth $3,000. But the law does not necessarily require the liquidation of capital

assets to satisfy support obligations. See Sussman v. Sussman, 

, 287

(Fla. 4th DCA 2005) (“Any additional obligation that the former husband must

incur would require him to dip further into his savings or deplete his capital assets

at an increased pace. This court has been loath to require such actions.”); Kinne v.

Kinne, 

, 194 (Fla. 2d DCA 1992) (“In any event, the law does not

require that an ex-husband necessarily sell capital assets to pay alimony.”). This is

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particularly true in Nation’s case, where the assets at issue are his home and

vehicle and are of minimal value.

      To the extent the judge believed Nation’s family would provide money for

his release, it was improper. See Breitenbach v. Breitenbach, 

,

1268 (Fla. 2d DCA 2003) (stating that theory that husband had a present ability to

pay an order by obtaining a loan from relatives was “outrageous”) (citing Perez v.

Perez, 

, 683 (Fla. 3d DCA 1992)). Moreover, Nation’s past ability

to make contempt payments should not be taken into consideration in this case. See

Keeler v. Keeler, 

, 1081 (Fla. 3d DCA 2011) (reversing trial court’s

finding that Keeler’s ability to pay was “based upon his history of obtaining funds

when needed” because the court improperly “focused on the past, not the present

ability to pay”).

      Because the contempt order was not supported by sufficient evidence, we

reverse the judgment of contempt and remand this case to the trial court. In doing

so, we note that the trial court is not precluded from holding additional proceedings

on this matter. See 

.

RAY, KELSEY, and WINOKUR, JJ., CONCUR.




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