FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2466
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STEPHEN B. SCHROLL,

    Appellant,

    v.

NANCY SMITH SCHROLL,

    Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

                       December 14, 2018


WINSOR, J.

     The Schrolls married in 1981 and divorced in 2016. After the
former husband failed to comply with the court’s equitable
distribution order (an order this court has subsequently reversed,
Schroll v. Schroll, 

(Fla 1st DCA 2017)), the trial
court held him in contempt. The former husband now appeals,
arguing that the court lacked authority to enforce an equitable-
distribution scheme through its contempt powers. We reverse.

     The trial court’s final judgment appeared to award each party
approximately $1.2 million in marital assets as part of the
equitable distribution. The former wife received proceeds from the
sale of the marital home, an annuity, and an IRA. The former
husband received the family business (StorkLand, a baby supply
store), property the business was located on, and several
StorkLand-related accounts. Additionally, the court awarded both
parties specific dollar amounts from a Vanguard money market
account. The Vanguard account was worth approximately
$450,000 when the case began, but as the case went along, the
former husband used money from the account to pay for “the
parties’ living expenses, including attorneys’ fees and costs, new
vehicles for both parties, moving expenses, and paying off the
mortgage on the former marital residence before it sold.” 

. As a result, the account was worth only $350,000
by the time of the final order. Yet the final judgment awarded each
side amounts that totaled more than that. On appeal, this court
reversed because the court failed to value the parties’ assets “as of
a date closer to the final hearing . . . because those assets had
significantly declined in value during the course of litigation.” 

     As to this appeal, the former husband explains, “[b]ecause of
the trial court’s faulty equitable distribution scheme, confusion
ensued in the trial court on post-judgment enforcement, which
ultimately led to the Former Husband’s incarceration and then the
instant appeal.” Init. Br. at 4. Essentially, the situation devolved
into a series of tit-for-tat exchanges, with the parties transferring
money between their various personal, joint, and business
accounts, and each claiming entitlement to certain funds. They
disagreed about much.

    After the court entered the final judgment, the former wife
withdrew $40,000 from the StorkLand business account, leaving
the account with insufficient funds to cover outstanding checks.
The former husband testified that, to replace the funds withdrawn
by the former wife, he transferred $40,000 from the Vanguard
account to the parties’ joint checking account. (According to the
former husband, the withdrawal had to go through the joint
account because “it was the only one linked to the Vanguard
account.”) But before he could transfer those funds to the
StorkLand account, the former wife captured the additional
$40,000, withdrawing it from the joint account. She later returned
$33,000 to StorkLand, but kept $7,000, which she claimed was
hers. She also kept the first $40,000 she withdrew. The former
husband subsequently withdrew the amount the final judgment

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allocated him from the Vanguard account, plus an additional
$7,000 to make up for what the former wife withdrew (wrongfully,
he believed) from the StorkLand account. As a result of all of this,
the Vanguard account was left without enough to cover what the
(now-reversed) final judgment said the former wife should take
from it.

    The former wife filed a contempt motion, and the court
ordered the former husband “to fully cooperate in the transfer of
the funds remaining in the Vanguard account.” Following a
hearing, the former husband gave the former wife’s attorney a
signed document allowing her to access the Vanguard account. But
when the former wife’s attorney found insufficient funds in the
account, the former wife filed a second contempt motion and
requested an ex parte order, which the court granted. The ex parte
order directed the former husband to transfer from the Vanguard
account “or otherwise provide to the former wife from some other
source the sum of $287,276.50” within three business days (by
Christmas Eve). After the former husband failed to comply, the
former wife filed a certificate of non-compliance and requested an
order of incarceration.

     At a hearing on the pending motions, the former husband
testified (and the former wife confirmed) that the funds remaining
in the Vanguard account—approximately $133,000—had been
transferred to the former wife. Although the financial records and
the former wife’s testimony confirmed the former husband’s
accounting, the court found his testimony to be “not very credible,”
held him in contempt, and ordered his immediate incarceration.
The former husband was taken into custody, but he was released
later that day, after the parties’ adult daughter tendered the purge
amount.

     The former husband now appeals, arguing that the court
abused its discretion in entering the contempt order. At the outset,
we note that the fact that this court reversed the equitable
distribution scheme is not alone a basis to reverse. “[A]n aggrieved
party’s failure to abide by [an] order may be punished by contempt
even if the order is ultimately found to be erroneous.” Carnival
Corp. v. Beverly, 

, 496 (Fla. 1st DCA 1999) (quoting
Rubin v. State, 

, 1003 (Fla. 3d DCA 1986)). But that

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is not the argument the former husband makes. He instead argues
that the court lacked authority to enforce the monetary judgment
through its contempt power.

     The Florida Constitution provides that “no person shall be
imprisoned for debt, except in cases of fraud.” Art. I, § 11, Fla.
Const. Accordingly, this court has held that “[o]bligations incurred
by a party in a marital property settlement are not subject to
enforcement through contempt proceedings.” Taylor v. Taylor, 

, 1127 (Fla. 1st DCA 1995). There is an exception for
child support or alimony obligations, see Schneider v. Schneider,

, 278 (Fla. 1st DCA 2016), but that exception is not
applicable here: These parties had no minor children, and the
former wife received only nominal alimony. Cf. Lee v. Lee, 

186, 187 (Fla. 1st DCA 1998) (noting that it is “necessary to look
at the circumstances of the particular debt under consideration, as
well as the specific provisions of the judgment itself, in order to
determine if the obligation is one for alimony or family support”).
Indeed, the former wife does not argue that the debt was for a
support obligation. Instead, she argues that contempt was
appropriate because the court specifically ordered the former
husband to take specific actions to effectuate the funds transfer
and to facilitate her access to the Vanguard account. We cannot
accept this argument.

     Although courts can use contempt powers to compel specific
actions to facilitate property transfers—they can, for example, use
contempt to compel return of personal property, see, e.g., Morse v.
Morse, 

(Fla. 3d DCA 2001)—they cannot convert a
general payment obligation into something enforceable by
contempt by simply characterizing it as an obligation to perform a
specific action. In Marks v. Marks, for example, this court held that
the final judgment’s requirement that the husband “shall be
responsible for the mortgage payments on the said marital home”
was not enforceable by contempt because the requirement was
“solely in the nature of a property settlement.” 

,
1138 (Fla. 1st DCA 1984)). But cf. Lee v. Lee, 

186, 187
(Fla. 1st DCA 1998) (holding mortgage obligation was enforceable
by contempt because in that case, the requirement “was a portion
and integral part of [husband’s] duty to contribute to the support
of the child”).

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     In this case, we cannot interpret the obligation at issue as
anything other than part of a marital property settlement. See Ball
v. Ball, 

, 679 (Fla. 1st DCA 1983). Nor can we
interpret the court’s orders as anything other than an attempt to
compel the former husband make certain payments or face
imprisonment. Indeed, the order of incarceration specifically
provided that the former husband was to remain in custody “until
such time as he purges himself by payment to the former wife . . .
in liquid, non-retirement funds.” We conclude, therefore, that the
court lacked authority to hold the former husband in contempt.

    REVERSED.

MAKAR and WINOKUR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Therese A. Felth of McKenzie Law Firm, Pensacola, for Appellant.

Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.




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