POMPEY v. COCHRAN

GLICKSTEIN, DELL and STEVENSON, JJ., concurring specially.

We concur in the result reached by the majority; we join with them in receding from Goldstein v. Navarro, 590 So.2d 20 (Fla. 4th DCA 1991), and we concur in the certification of the questions.

KLEIN, J., specially concurring.

I agree entirely with the majority opinion. I am writing separately on an issue not addressed by the majority, section 61.14(5), Florida Statutes. The statute creates a presumption that the obligor has the "present ability. . . to purge himself from the contempt" by virtue of the original order of support. The statute does not apply here, as the majority notes in footnote 2, because it was not passed until 1992, and the 1986 order was not entered pursuant to the requirements of the statute.

A presumption which shifts the burden of proof may be unconstitutional, a fact which our supreme court recognized in Bowen, 471 So.2d at 1279. I have concerns that the statutory presumption may be applied in such a way as to deny due process.

The "due process clauses of the Fifth and Fourteenth amendments set limits upon the power of congress or that of a state to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated." Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943). Tot involved a rebuttable presumption regarding a fact which shifted the burden of coming forward with the evidence to the defendant, and the Court held that it was a denial of due process. In order for a rebuttable presumption (or inference) to be consistent with due process, "a rational connection must exist between the facts in the record and the ultimate fact to be presumed." Marcolini v. State, 673 So.2d 3, 5 (Fla. 1996), citing Ulster County Court v. Allen, 442 U.S. 140, 165, 99 S.Ct. 2213, 2228, 60 L.Ed.2d 777 (1979).

The Florida Supreme Court has applied the rational connection test to statutory rebuttable presumptions in civil cases. Straughn v. K K Land Management, Inc., 326 So.2d 421, 424 (Fla. 1976) (there must be a "rational connection" and a "right to rebut in a fair manner," for the presumption to be constitutional, citing Tot). In Bowen, after creating the presumption, the Florida Supreme Court cited one of the leading rational connection cases, Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2361, 37 L.Ed.2d 380 (1973). Bowen at 1279. It is thus clear that presumptions must pass the rational connection test, in order to comply with due process, regardless of whether the case is civil or criminal, and regardless of whether they are created by the legislature or the courts.

Historically confusion existed regarding the application of the rational connection test, but it was clarified by the United States Supreme Court in Allen, in which the Court concluded that rebuttable presumptions or inferences are evaluated for constitutionality under the rational connection test as applied to the facts in each case. The Florida Supreme Court recently followed Allen, and characterized the rational connection test as a "more likely than not" test. Marcolini, 673 So.2d at 6.

Accordingly, a presumption that a contemnor has the ability to pay must, in order to not violate due process, pass the rational connection test. If a presumption was the basis for the finding that Pompey was able to pay the purge amount, $22,100, the presumption would have been unconstitutional as applied to the facts. There is no rational connection between the known fact, that Pompey could have paid $60 a week in 1986, and the presumed fact, that he could come up with $22,100 at the time he was incarcerated.

Trial judges should thus take care, where there is no evidence as to ability to pay, and they are using the presumption to set the purge amount, to make the amount low enough to pass the rational connection test. Otherwise the possibility exists that a person like Pompey will be denied due process. That is why the dissent's position, that habeas would never be available in an appellate court under these circumstances, is too harsh and inflexible for me.

WARNER, PARIENTE and GROSS, JJ., concur.

GROSS, J., specially concurring.

I agree with the majority opinion. I write separately to offer my perspective as a trial judge who has actually presided over the types of civil contempt hearings here at issue.

The problem with the dissent's approach is that it elevates procedure over people; it treats civil contempt as if it were the same as every other civil action. It is not. The consequence of an adverse finding in a civil contempt proceeding can be jail, not a piece of paper that can lead to a loss of assets. It is because this sanction is so unique in a civil case that contempt jurisprudence has sought to harness it by establishing procedures and rules to ensure that the incarceration is coercive rather than punitive, avoidable rather than mandatory.

I disagree with the dissent's worry that this case will make it difficult to enforce support judgments. The prospect of even a short jail stay usually extracts money out of those that have it. The majority opinion does not invalidate the practice of arresting contemnors who fail to appear at properly noticed contempt hearings. Unfortunately, many obligors do not appear at these hearings and arrest is necessary to secure their participation in the support process. As the majority noted, most circuits have developed local procedures to prevent what happened to Pompey from occurring. These practices entail the equivalent of a first appearance before a judge shortly after arrest to either hold a Bowen hearing or decide whether a full hearing is warranted. Such a procedure allows the trial court the flexibility to manage the case on an individual basis and then decide whether an additional post-incarceration hearing is warranted. That a timely post arrest hearing is an effective procedural safeguard was demonstrated in this case. Once Pompey received the hearing ordered by this court, the purge figure was lowered to $212.00, the amount of Pompey's biweekly unemployment check. This revised purge amount then allowed Pompey to secure his release.

Where a contempt hearing generates hard evidence of a contemnor's ability to pay, such as evidence of a salaried job or a recent win in the lottery, a contemnor's refusal to attend a contempt hearing will not result in the right to a de novo hearing at the contemnor's convenience. No one in this case has ever contended that the finding of Pompey's ability to pay was based on anything other than his failure to appear. This was not a case where the party seeking contempt made an evidentiary showing at the contempt hearing of the contemnor's ability to purge. This is also not a case where the trial court had a recent experience with the defaulting party by virtue of an ongoing divorce or child support proceeding.

We have not been informed about the existence of a uniform procedure in Broward County, similar to that in Palm Beach County, which mandates post-arrest hearings. However, the trial judge who presided over the post-incarceration hearing in this case immediately recognized that Pompey had slipped through the cracks. She observed that:

I usually catch these big ones going through. For some reason I did not catch that the first time and some other judge signed the incarceration order. So I missed having it the second time. I usually catch them and reduce them to some rather low multiple of the amount that is being owed in child support.

Habeas corpus is a flexible remedy that must be available to someone who has slipped through the cracks of the system to ensure that their continued confinement is not offensive to Bowen.

A very real problem in this area is that most contemnors do not have attorneys, so they are unable to analyze and address their legal situation. Even where jail is the sanction imposed, a civil contemnor is not entitled to the appointment of an attorney, unlike a criminal defendant. Without a rule of procedure to regulate the contempt sanction, a pro se contemnor who has missed a hearing can be forced to analyze an area of law that befuddles many attorneys.

This area is ripe for clarification and organization by a rule of family procedure. Two goals of such a rule would be to provide uniformity in the procedures for handling non-support civil contempts and to deal with the problem confronting a trial court when a parent does not appear at a properly noticed contempt hearing. Such procedures could specifically authorize the issuance of a writ of bodily attachment for a non-appearing obligor. The rules could also require a timely post-arrest hearing, as is done in Palm Beach County, to ensure compliance with Bowen. The rules could also specify that the trial court advise unrepresented defendants of their legal rights, including the right to seek periodic review of a contempt finding before the trial court. See United States v. Jenkins, 760 F.2d 736, 740 (7th Cir. 1985); King v. Department of Social and Health Servs., 756 P.2d 1303 (Wash. 1988).

This court has long labored over this case, attempting to balance the strong public policy that children be maintained from the resources of their parents with the rights of an individual unable to comply with purge provisions not to be unconstitutionally imprisoned. It is my hope that our supreme court can assist us in striking the proper balance by clarifying the procedural pathways available in this area.

WARNER, POLEN, KLEIN and PARIENTE, JJ., concur.

STONE, Judge, concurring in part and dissenting in part.

Although there is precedent for the exercise of habeas corpus jurisdiction under these circumstances, I, nevertheless, dissent from our doing so. I would deny the petition and hold that habeas corpus relief should not be afforded by this court to a contemnor taken into sheriff's custody pursuant to a facially valid civil contempt judgment. Rather, the petitioner should seek habeas corpus relief, by way of demonstrating his present inability to purge, in the trial court. Habeas corpus should not be available to effectively negate an unappealed judgment or order of civil contempt, that is facially valid and entered by a court having jurisdiction, where the petitioner initially elected not to, or neglected to, challenge the evidentiary basis for the civil contempt order by an available remedy of direct appeal. Driggers v. Pearson, 141 Fla. 256, 192 So. 881 (1940). See also Taylor v. Chapman, 127 Fla. 401, 173 So. 143 (1937); McCrae v. Wainwright, 439 So.2d 868, 870 (Fla. 1983). I would recede, if necessary, from any contrary implication in our previous opinions, LeNeve v. Navarro, 565 So.2d 836 (Fla. 4th DCA 1990); Cook v. Navarro, 611 So.2d 47 (Fla. 4th DCA 1992); or Vick v. Navarro, 567 So.2d 495 (Fla. 4th DCA 1990).

In my judgment, the procedure we should follow is that utilized in Goldstein v. Navarro, 590 So.2d 20 (Fla. 4th DCA 1991). To carry Goldstein a step further, I would treat a habeas corpus petition sought under these circumstances as being filed in the wrong court and would direct our clerk to transfer it to the clerk of the circuit court. If there is concern that a hearing might not be afforded in the trial court, relief by writ of mandamus is available to insure that the petition alleging unlawful confinement will be promptly heard. Any further relief by this court is then obtainable by direct appeal, in which there would be a more complete record and, both we and the trial court, would have the flexibility to consider a stay or other temporary relief. Such a result would be consistent with the recognition in Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985), that the burden of producing evidence as to inability to pay is on the defaulting party.

I cannot conclude that Petitioner has been deprived of due process. He has been afforded notice and every opportunity to be heard. Regardless of whether the contempt order was founded on a mountain of direct evidence or simply on the bare essentials, a default, and the application of a rebuttable presumption, it is valid on its face. Enforcement of the order's civil contempt provisions is not illegal where there was jurisdiction and Petitioner had an opportunity to contest it, to appeal, and is permitted to seek the attention of the trial court, as readily as he has petitioned this court, in order to demonstrate that he lacks the present ability to pay the purge. The issue then should not be one challenging the initial detention pursuant to a facially valid court order, but whether the confinement, absent payment of the initial purge amount, should continue. I note that there is no indication in this record that affording the trial court the first opportunity to review Petitioner's condition would be a useless act.

I concur in the certified questions. I also agree with the initial disposition of this cause, which was to remand for a trial court hearing.

GUNTHER, C.J., FARMER and SHAHOOD, JJ., concur.

FARMER, J., dissenting.

In agreeing to issue this writ of habeas corpus, the plurality acknowledges that:

"Because civil contempt sanctions are `coercive and avoidable through obedience,' they may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard, without the constitutional protections required in criminal cases."

Slip Op. at 6. Notwithstanding, the plurality states that this "ordinary civil proceeding with notice and an opportunity to be heard" ended up punishing a contemnor rather than coercing him. In holding that Pompey's incarceration was unlawful, the plurality had to elevate an alleged failure of evidence into a constitutional deprivation. Their entire argument hinges on a determination that there was no evidence to establish a purge amount. To reach their conclusion, the plurality has rejected a rebuttable presumption of ability to pay approved by the supreme court. Thus, in granting the writ, the plurality has converted an ordinary evidentiary issue that should have been raised in an appeal into a constitutional issue, thereby permitting a collateral attack on an unappealed judgment.

Perhaps most important is the willingness of the plurality to have this court, rather than the trial court, grant the writ. As I understand supreme court precedent, it is for the trial court to grant habeas relief when the alleged constitutional defect turns, as here, on a disputed fact, i.e. the contemnor's ability to purge. The plurality has done so based upon petitioner's unsupported statement, presented for the first time in this court, that he lacked the ability to pay the purge amount when the contempt judgment was entered. They do not explain why this mere contention should be the basis for granting habeas in this court, an appellate court, when it was never sought to be made in the trial court. Indeed, the panel assigned to this case entered an order, just as we did in Goldstein v. Navarro, 590 So.2d 20 (Fla. 4th DCA 1991), transferring this case to the trial court to afford Pompey a hearing on his contention that he is unable to pay the purge amount. If Pompey had filed this petition first in the trial court to seek an evidentiary hearing on his current ability to purge himself from the contempt, and if the trial court had denied him a hearing on the matter, he then could properly have sought mandamus in this court to compel the hearing, or even appealed that denial.

I enthusiastically support the use of habeas corpus to relieve incarcerations that are in violation of constitutional guarantees, such as the right to due process of law. As I will elaborate later, however, I do not find the circumstances of this case to amount to a violation of due process. At the same time, I readily agree that if Pompey had appeared at the contempt hearing and offered his own evidence and then timely appealed the contempt judgment in this case, he would clearly have been entitled to review on whether the evidence supported the amount of the purge provision. The failure to make use of the standard remedy of appeal has the consequence of finality, and habeas corpus is not available to avoid that consequence.

The plurality decision would make it more difficult for custodial parents to enforce a support judgment by contempt. With the remedy of habeas now at hand, few nonpayers of support will appeal or even very likely trouble themselves to attend contempt hearings. When the nonpayers are finally tracked down and brought into court, they will now raise by habeas corpus the sufficiency of the evidence to support the unappealed contempt judgment. I believe that this decision is a striking departure from settled use of the Great Writ.

The general principles for habeas corpus relief have been well settled by the supreme court. To be entitled to habeas relief, the contemnor must show that he is being held illegally, meaning he was confined in violation of the constitution. "The purpose of the ancient and high prerogative writ of habeas corpus is to inquire into the legality of a prisoner's present detention." McCrae v. Wainwright, 439 So.2d 868, 870 (Fla. 1983); see also Frizzell v. State, 238 So.2d 67 (Fla. 1970); Sneed v. Mayo, 69 So.2d 653 (Fla. 1954). Moreover, habeas corpus should not be used as a vehicle to raise issues which should have been presented in trial court. McCrae, 439 So.2d at 870. Habeas corpus may not be used in place of a remedy by appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla. 1980) (habeas corpus may not be used as vehicle to raise for first time issues that petitioner could have raised on appeal). Thus, habeas corpus is not available to allow a court to examine the individual justice or merits of the detention. Shelton v. Coleman, 136 Fla. 625, 187 So. 266 (1939). The court's power to issue the extraordinary prerogative writ of habeas corpus must be exercised with extreme caution and only in a clear case. Taylor v. Chapman, 127 Fla. 401, 173 So. 143 (1937).

More pertinently, under the supreme court decisions, the writ does not lie in civil contempt cases arising from a refusal to pay support where the contemnor seeks to argue unappealed evidentiary or nonconstitutional, procedural errors made in the contempt proceeding. In Driggers v. Pearson, 141 Fla. 256, 192 So. 881 (1940), the court considered a petition attacking the merits of an unappealed civil contempt order for nonpayment of temporary alimony in a pending divorce case. The contemnor there, like the contemnor here, sought to argue that the contempt order was in error for failing to make a specific finding of his ability to comply with the support order. In determining that the relief was not available under these circumstances, the court held:

"if there was any error in [the determination of the contemnor's ability to pay], an appeal could have been taken. [c.o.] The order thus made cannot be attacked collaterally for mere error, if there was error." [e.s.]

192 So. at 882. As the court explained:

"In such collateral attack by habeas corpus proceedings in this type of case, practically the only question which can be raised is the jurisdiction of the committing court over the subject matter and the parties."

192 So. at 881. The plurality forthrightly acknowledges that it is unable to distinguish Driggers and that Driggers has not been specifically overruled by our supreme court.

The majority overrules our earlier decision in Goldstein, implying that we held in that case that habeas corpus relief was not available to remedy a civil contempt incarceration that resulted from a deprivation of due process. I do not read such a holding, implied or express, in that case. Goldstein was expressly based on Driggers, which held that habeas corpus is not available in the circumstances presented there—and in this case—to attack ordinary appealable errors in a contempt judgment. I would not recede from Goldstein because I think it is correct. I would recede, however, from any holding in Cook v. Navarro, 611 So.2d 47 (Fla. 4th DCA 1992), Vick v. Navarro, 567 So.2d 495 (Fla. 4th DCA 1990), and LeNeve v. Navarro, 565 So.2d 836 (Fla. 4th DCA 1990), that habeas corpus may be used to mount a collateral attack on the merits of an unappealed order of confinement for civil contempt that has become final.

The plurality suggests that Goldstein is contrary to the supreme court's holding in Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985). But Bowen was an appeal. Bowen does not address the precise issue raised and decided by the plurality. Bowen did not involve a later attempt to use habeas corpus to review the sufficiency of the evidence to support the purge provision in the unappealed contempt order. Bowen decided only when and how civil contempt incarceration may be employed by trial judges to coerce support payments.

In reaching their conclusion, the plurality dances around Bowen in a "two-step" gavotte. They do so by carving a specific paragraph from Bowen into two parts, as though it were entirely separate sections in a multiple-issue opinion. From this division, the plurality concludes that "the presumption of ability to pay which exists in the first step is not a substitute for the `separate affirmative finding' of ability to pay required for incarceration." Slip Op. at 5. The paragraph the plurality has separated was actually written in Bowen as follows:

"To avoid confusion, we believe it appropriate to address the correct procedure for establishing civil contempt in family support matters. In these cases, the initial order or judgment directing a party to pay support or alimony is predicated on an affirmative finding that the party has the ability to pay. This initial judicial determination creates, in subsequent proceedings, a presumption that there is an ability to pay. In a civil contempt proceeding for failure to pay child support or alimony, the movant must show that a prior court order directed the party to pay the support or alimony, and that the party in default has failed to make the ordered payments. The burden of producing evidence then shifts to the defaulting party, who must dispel the presumption of ability to pay by demonstrating that, due to circumstances beyond his control which intervened since the time the order directing him to pay was entered, he no longer has the ability to meet his support obligations. The court must then evaluate the evidence to determine whether it is sufficient to justify a finding that the defaulting party has willfully violated the court order. Once the court finds that a civil contempt has occurred, it must determine what alternatives are appropriate to obtain compliance with the court order. If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order. In determining whether the contemnor possesses the ability to pay the purge amount, 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."

471 So.2d at 1278-79.

The entire theme of Bowen is the use of the remedy of incarceration, not some lesser remedy as to which the Bowen measures are unnecessary. The obvious purpose of the Bowen paragraph was to provide a single procedure for trial judges to impose incarceration in civil contempt support cases, using the support judgment as the fulcrum. It does not separate the initial presumption from the ability to purge contempt because that presumption is the very heart of Bowen. Yet the plurality separates the fulcrum from the lever, so that the one may not be used with the other. They conclude that the presumption of ability to pay may not be used to fix the purge amount.

Thus, the essential problem with the plurality's reasoning is its inconsistency with the supreme court's careful placement of the burden on the contemnor to prove inability to purge. Bowen clearly imposes on the obligor the burden to offer evidence that he lacks the ability to purge himself of the contempt by paying the support due. It states specifically that the obligor has the burden of going forward with the evidence to show the lack of ability to pay support. Bowen then permits the trial judge to consider the same evidence to decide whether incarceration should be employed to compel payment. Yet, under the plurality's reasoning, the proponent of contempt cannot rely on the presumption for the ability to purge, and now has the burden to present additional evidence showing ability to purge.

The plurality reads some difficulties into the application of civil contempt that, I believe, a reasoned analysis does not support. They argue that there are "few procedural safeguards" in civil contempt, contending that many prospective contemnors are unrepresented and "may be unaware of their rights." The short answer is that every citizen—including those who default in the payment of support—is presumed to know the law. When a defaulting payer of support has been charged with contempt, the prospective contemnor presumptively knows of Bowen. Equally, he knows that he may be incarcerated if he does not dispel the presumption with evidence showing his inability to comply.

I do not see the Bowen presumption as a "paper" one. The presumption is a function of the finality of the support judgment, not just an ordinary evidentiary one. See Faircloth v. Faircloth, 339 So.2d 650, 652 (Fla. 1976) ("This burden of proof is cast upon him not by mere presumption of law, which vanishes upon the introduction of any evidence to the contrary (Locke v. Stuart, 113 So.2d 402 (Fla.App. 1st 1959); Leonetti v. Boone, 74 So.2d 551 (Fla. 1954)), but by the court's decree which created the obligation to pay. That decree, long since final and therefore invulnerable, is itself a finding that, as of the moment of its entry, Mr. Faircloth had the ability to make the required payments."). Bowen receded from Faircloth in part, but not as to that which I have just quoted.

The plurality says that "[t]he trial court must have some affirmative evidence before it that the obligor has the `keys to his cell' in his pocket." [e.s.] Slip Op. at 7. Bowen does not say that. Instead, it says that "the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order." [e.s.] 471 So.2d at 1278. There is a difference between a requirement for an affirmative finding and for affirmative evidence. Bowen permits the trial court to employ a presumption of ability to pay and then transfers to the obligor the burden of going forward with the evidence.

I do not really think there is any "dilemma" or "catch-22" facing a trial judge when, in spite of notice, the obligor does not appear at the contempt hearing. All that is necessary is that the judge receive evidence of the judgment requiring the support payments and evidence of nonpayment. That leads to the presumption that the obligor has the ability to pay and has willfully defaulted. Hearing no contrary evidence, the trial judge faces a straightforward evaluation of the presumption and initial evidence. Notice of the contempt hearing and the ability to be heard at that hearing more than satisfy the fundamental fairness and due process to which Pompey was entitled if he was to be incarcerated for civil contempt. Andrews v. Walton, 428 So.2d 663 (Fla. 1983). When the contemnor is finally taken into custody, if he can show a then present inability to pay, Bowen means that he need then seek a hearing before the trial judge to establish that inability.

The plurality asserts that when obligors fail to respond to notice and to attend the contempt hearing, there is a:

"very real risk that an individual will be imprisoned on a civil contempt without holding the `keys to his cell,' thus allowing unconstitutional incarceration without the same due process protections afforded to typical criminal defendants."

Slip Op. at 8. But this circumstance does not result in a deprivation of due process. The Bowen procedure was deliberately designed to provide procedures, comporting with due process, that would avoid incarcerating a nonpayer of support who lacks the ability to pay. But when the obligor himself refuses or fails to make use of those procedures, as is true in this case, I do not believe that it can fairly be said that his incarceration has resulted from a failure of the process. It is obviously a failure of the individual, not the process. As I indicated earlier, because contemnors will now have the right to use habeas to review the unappealed contempt order, they have no reason to attend the contempt hearing or to appeal any judgment resulting from it.

So far as I am aware, our law has almost always treated a party's failure to attend a duly noticed hearing as an abandonment of the right to contest the sufficiency of the evidence to support the judgment emerging from the hearing. Indeed this principle seems to me to have especial application in support enforcement cases. The practical effect of the plurality's holding will encourage defaulting obligors not to attend the original contempt hearing by permitting them to mount a collateral attack on the unappealed contempt judgment. It will also allow the contemnor to further delay enforcement of the support judgment, much to the detriment of children. Additionally, it will increase the costs and expenses of those seeking to enforce the obligation and add unnecessary hearings to the court system.

The plurality says that a trial judge may, without a purge provision, properly issue a writ of bodily attachment and arrest a "non-appearing obligor" when he fails to attend the contempt hearing. The plurality says that "this procedure would permit the incarceration for civil contempt without running afoul of constitutional rights." Slip Op. at 8. That seems to me to be quite inconsistent with Bowen. Bowen holds that a contemnor may be incarcerated for civil contempt only when he has the ability to end his incarceration by complying with the order. But if there is no purge provision, how will the contemnor comply? For when the contemnor is arrested far away from the county where the case is pending, it may be several days before he can be brought before the contempt judge. He will have no way of purging while he is being held and transported. Thus while the plurality finds that Pompey was illegally incarcerated because there was no "affirmative" evidence of ability to purge, apparently they find no constitutional impediment to arresting and incarcerating him without any purge provision at all!

I disagree with the plurality's unsupported assertion that section 61.14(5)(a), Florida Statutes (1995), is not applicable to this case. They reason that, because the child support judgment was entered in 1986 before this statute was adopted in 1992, it may not be applied in this case. In so doing, they have overlooked subsection (3) of section 61.14, which states that "[this section is declaratory of existing public policy and of the laws of this state." [e.s.] The term "existing public policy" quite plainly refers to Bowen and its express presumption of ability to purge, as well as its placement of the burden on the contemnor to prove the contrary.

Moreover, as disclosed by its title, section 61.14 is undeniably a remedial statute. (" Enforcement . . . of support, maintenance, or alimony agreements or orders." [e.s.]) It is well established that remedial statutes operate retrospectively. State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla. 1995) (procedural or remedial statute acts retrospectively); City of Orlando v. Desjardins, 493 So.2d 1027 (Fla. 1986) (remedial statute can and should be retroactively applied in order to save its intended purpose). The plurality's failure to apply section 61.14 in this case thus seems contrary to controlling supreme court precedent.

Without saying how, the plurality states that the support judgment does not "comply with the terms of" section 61.14. I assume they refer to the omission of a finding in the judgment that petitioner has the "imputed or actual present ability to comply with the order." Even conceding that the support judgment lacks an express finding on ability to pay, I would still apply the statute because the judgment was a consent judgment. Petitioner agreed to pay $60 per week in child support. Consent is an express admission of ability to pay what one has agreed to pay. The consenting payer should not be heard after defaulting in payment to say that his agreement is unenforceable because it failed to state the income or assets by which the the agreed payments will be made.

By concluding that the evidence was not sufficient to support the contempt judgment, the plurality obliterates any distinction between ordinary appellate review and the extraordinary writ of habeas corpus. In the end, Pompey's right to petition the trial court for habeas corpus provided a sufficient remedy if, when he was finally incarcerated, he did not have the ability to comply with the purge provision in the contempt order. There will always be controversies over whether the jailed contemnor actually possesses the ability to pay the purge amounts. Those factual controversies are, as they always have been, for resolution by the trial court, subject to review on direct appeal.

Because the plurality's rationale appears to be contrary to Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), and the decision makes it significantly more difficult and costly to compel defaulting payers to comply with their obligation to pay support, I do join in the plurality's certification to the supreme court.

GUNTHER, C.J., and SHAHOOD, J., concur.