Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-3855 _____________________________ ROBERT B. FINCH, Former Husband, Appellant, v. TERRI CRIBBS f/k/a Terri C. Finch, Former Wife, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Lance M. Day, Judge. June 22, 2021 PER CURIAM. Robert Finch appeals orders finding him in contempt and ordering various sanctions for his discovery failures and non- payment to his former wife, Terri Cribbs. We affirm. I. In March 2014, by consent final judgment and settlement agreement, the trial court dissolved the marriage of Robert and Terri. The consent agreement required Robert to pay Terri $2,600 per month in permanent alimony and to repay a personal loan to her at $1,031.63 per month. By May 2016, Terri had moved to hold Robert in contempt; she argued her former husband was not paying the stipulated alimony nor the loan payment. Just before a hearing on that motion, the parties entered into a second consent order to resolve the contempt motion. Robert consented to pay a lump sum of $5,000, pay his remaining $18,000 of arrearages at $5,996 per month, and continue his previously required payments beginning the next month. A year later, Terri again moved for contempt for non-payment, and she sought financial discovery. Robert moved to modify his obligations, generally contending he could not financially afford to pay the amounts he had twice consented to pay. For the next year, Robert largely failed to turn over financial documents, and his arrears reached $100,000. Also, the court had sanctioned Robert for his repeated failure to comply with discovery by granting Terri attorney’s fees in an amount to be determined later, by dismissing Robert’s modification petition without prejudice, and by threatening jail and monetary penalties. At the May 2018 final hearing, Terri testified to Robert’s non- payment; and she had a financial expert testify to her former husband’s income. The expert explained that Robert owned a business, and the records presented to the expert showed significant assets flowing from the business to Robert personally— without any indication that the monies were then put back in the business as business assets. The expert also testified Robert had used business credit cards for personal expenses, including vacations. Robert took the stand and testified that his business was on the verge of bankruptcy. He claimed that he was relegated to “COD,” or cash-only deals, and the large withdrawals were for business purposes. However, he could not provide receipts for any purchases and did not specifically remember specific transactions. He explained he moved money from the business account to his personal account so business creditors could not reach the money, but the money was nevertheless business money. He acknowledged he used business credit cards for personal trips and over-the-counter withdrawals to pay his legal fees. Finally, Robert testified he flew from South Florida to Jacksonville for the hearing 2 and had $2,200 in cash in his wallet—from a recent business sale, though he did not have a receipt for it. The court rendered its final order in August 2018. In the order, the court recounted in detail the history of consent orders requiring Robert to pay certain monies, his failures to do so, further consent orders, further failures to pay, and contempt and enforcement motions. This led the court to conclude that Robert “had no intention of ever abiding by the repayment schedule to which he expressly agreed.” The court found persuasive the expert’s testimony about Robert’s significant income and assets derived from the business, and it found Robert’s testimony that his business was performing “poorly” to be not credible. The court in turn found that Robert at all times had the ability to pay, but that he willfully failed to do so. The court cited Robert’s cash-on-hand at the final hearing and transfers from the business totaling over $400,000. The court reviewed the documents and testimony and found that Robert had a monthly income of over $15,800, and after expenses, that he had over $11,300 to pay towards his obligations to Terri. The court credited Robert’s previous payments to the loan arrearage, which brought that amount current, and found Robert was over $69,000 in arrears as to alimony. The court ordered Robert to pay $29,289.87 in attorney’s fees as a sanction under Florida Family Law Rule of Procedure 12.380. And the court noted it had previously ordered Robert to turn over discovery or pay $500 per day (up to thirty days) as a contempt sanction, which amounted to $14,500. The court ordered that Robert either pay the attorney’s fees and contempt sanction within the next sixty days or face jail time; and the court specifically found that Robert had the ability to pay this purge amount. II. Robert raises three issues. He argues that there was not sufficient evidence to support a finding that he could pay the contempt purge amount and Terri’s attorney’s fees; that the multiple sanctions of the fine, attorney’s fees, and dismissal of his modification pleading were improper; and that applying his previous payments to the loan arrears rather than alimony arrears was error. We affirm on all three. 3 A. We first consider Robert’s challenge to the contempt order. Typically, we presume such an order to be correct on appeal and do not disturb the order unless there is no competent, substantial evidence in the record to support it. See Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014). The trial court must base a purge amount on the contemnor’s present ability to pay. See Bowen v. Bowen, 471 So. 2d 1274, 1280 (Fla. 1985); Fla. Fam. L. R. P. 12.615(e). In determining the contemnor’s present ability to pay, “the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.” Bowen, 471 So. 2d at 1279. This means a trial court is not cabined by what it suspects is the under-reported income of a self-employed spouse, especially when that spouse has failed to disclose the pertinent financial information to back up his claim. Where the self-employed spouse’s own misconduct is responsible for the inability of the trial court to accurately determine his income, he cannot then be heard to complain about the trial court’s reliance on evidence of unexplained withdrawals from his business and indicators of his comfortable lifestyle that contradict his claimed inability to pay. The trial court has the discretion to consider the self-employed spouse’s available business assets in these circumstances when making its present-ability-to-pay determination. Cf. Gibbs v. Gibbs, 1D19-4030, 2021 WL 1685755, at *2 (Fla. 1st DCA Apr. 29, 2021); see Newman v. Newman, 221 So. 3d 642, 644–45 (Fla. 4th DCA 2017); Harris v. Millett-Harris, 900 So. 2d 712, 713 (Fla. 3d DCA 2005). Here, there was ample evidence for the trial court to find that Robert had the ability to pay the purge of the attorney’s fees and contempt sanctions. Before the trial court, there were financial records showing Robert took large sums of money from his business and put that money into his personal account—without documentation or credible testimony that the money was then reused for business purposes. There also was the testimony from Terri’s expert that Robert had immediate access to significant personal funds through the business. The trial court observed that Robert carried significant sums of cash on him—without documentation or credible testimony that it in fact was business 4 money. There of course was evidence that Robert repeatedly moved monies to avoid detection and creditors. Finally, the trial court found that Robert’s testimony itself was not credible. Robert hastens to highlight his testimony about how the business was failing and the money was business money, but the court rejected this because it was not believable. That there may have been some evidence to support Robert’s view does not obviate the evidence on which the trial court relied that showed the opposite view. The trial court, then, had competent, substantial evidence to support its finding as to Robert’s ability to pay the purge amount. Robert also challenges the contempt order’s requirement that he pay Terri’s attorney’s fees incurred in bringing the enforcement action. He contends that the trial court did not engage in a full assessment of Terri’s need versus his ability to pay. First of all, the trial court did engage in this assessment, and there was competent, substantial evidence showing a disparity in the former spouses’ income to support the trial court’s assessment of attorney’s fees. Indeed, at the time of the hearing, Terri had been laid off from her job as an administrative assistant (making $14.00 an hour), but Robert’s net monthly income was around $11,000. Moreover, the trial court in part awarded attorney’s fees as a sanction for discovery violations. See Fla. Fam. L. R. P. 12.380(a)(4), (b)(2) (permitting, and in some instances requiring, the court to award fees to a party that fails to respond to discovery requests). As a sanction, the rule does not require a determination of relative ability to pay. Fair to note here that Robert had more than a year to respond to discovery requests, and Terri had moved multiple times to hold Robert in contempt for his failures. Robert finally provided some discovery; but at the hearing, it was apparent there was more that Robert had still not provided. For example, documents showing sales and the purposes for which Robert was moving monies, which Robert stated he could provide, but had not. Given Robert’s repeated failures over a long period of time, it was not unreasonable or arbitrary for the court to have awarded Terri fees for her continued actions to obtain Robert’s compliance. 5 B. We turn to Robert’s challenge to the trial court’s imposition of sanctions for his discovery violations. This we review for abuse of discretion. See Thurman v. Thurman, 637 So. 2d 64, 65 (Fla. 1st DCA 1994); cf. Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). Those sanctions, under rule 12.380, may be cumulative—and Robert does not argue otherwise. See Fla. Fam. L. R. P. 12.380(b) (explaining attorney’s fees may be imposed instead of or in addition to other available sanctions). Robert only makes the equitable argument that multiple sanctions in this instance were too much, especially including the ultimate sanction of dismissal. We disagree. The court here reviewed the case history, Robert’s two agreed- upon orders to pay Terri certain amounts, his continuing failures to pay or provide ordered discovery, his finances, his non-credible testimony about his financial picture, and his movement of funds to avoid creditors. Given this, the court’s cumulative sanctions are not unreasonable. While a different trial court may have approached sanctions differently under similar circumstances, we cannot say that no reasonable judge would have ordered the multiple sanctions imposed here. We do note that the court dismissed Robert’s modification request without prejudice, such that he could re-file if his circumstances change and he could show an inability to pay. C. Finally, we consider Robert’s challenge to the manner in which the trial court applied payments he had made towards his overall arrearages. He argues that the court was required to apply those monies to alimony arrearages first, and then to the personal loan. He fails to cite to any authority for this alleged requirement. So, once again, we disagree. A trial court has broad discretionary authority in matters like this. Cf. Canakaris v. Canakaris, 382 So. 2d 1197, 1202–03 (Fla. 1980) (noting the “broad discretionary authority” that trial courts have in dissolution proceedings with respect to apportioning assets, providing for spousal support, doing equity between the parties, and fashioning various remedies). Absent any statute or 6 rule that requires that a trial court apply payments to alimony arrearages before applying them to a personal loan arrearage, we cannot say the trial court abused its discretion. See id. (explaining judicial discretion vis-à-vis a failure to apply a correct legal rule). The court applied the money so that the entirety of Robert’s loan arrearage was brought current. This is a reasonable choice. Merely arguing, as Robert does, that the court could have applied the payments differently does not show an abuse of discretion. III. There was competent, substantial evidence for the court to find Robert had the ability to pay the purge and Terri’s attorney’s fees; the court did not abuse its discretion in rendering multiple sanctions for Robert’s continued contumacious actions; and the court did not abuse its discretion in allocating Robert’s past payments towards his loan arrearage. AFFIRMED. RAY, C.J., and ROWE and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant. Rebecca Bowen Creed and Aaron Sprague of Creed & Gowdy, P.A., Jacksonville, for Appellee. 7