No Time but the Present: Law Offices of Robin Bresky Wins Motion for Rehearing of Order Holding Former Husband in Contempt for Failure to Pay Attorney’s Fees Based upon Future Ability to Pay

The Law Offices of Robin Bresky recently won a motion for rehearing of an order of contempt that held our client in contempt for failure to pay an award of temporary attorney’s fees. We are in the process of appealing the underlying order requiring our client to pay fees to opposing counsel. The parties were divorced in 2005 and the final judgment of dissolution incorporated a marital settlement agreement that detailed the former husband’s alimony obligation. In 2011, the former wife filed a petition for modification of alimony seeking an increase in her alimony based on her allegations that the parties’ financial circumstances had changed substantially. As part of her petition, the former wife requested an award of temporary attorney’s fees. The trial court conducted a hearing and awarded the former wife $79,333 in attorney’s fees for the modification litigation.

Our client, the former husband, was unable to pay the temporary fee award due to a downturn in his business attributable to poor economic conditions. The former wife later filed a motion for contempt against our client based on his failure to pay. The trial court conducted a contempt hearing and then granted the former wife’s motion to hold our client in contempt.

Our firm filed a motion for rehearing of the order granting the former wife’s motion for contempt. We stressed that civil contempt requires a court finding of both a party’s willful non-compliance and that a party has the present ability to comply with the court’s order. We argued that the trial court had failed to adequately identify the means by which our client could satisfy the purge amount, and also that the order of contempt was improperly based in part upon a prospective ability to pay because it assumed our client would be able to make future regular payments to the former wife’s attorney. We argued that this framework ran contrary to the legal principle that contempt must be based upon a present ability to pay. We also argued that the trial court had failed to make findings that our client had equity in certain assets that the trial court had identified.

The trial court held a hearing and agreed with our position. The trial court rendered an order granting the motion for rehearing of the order granting the former wife’s motion for contempt. This positive outcome undid the order of contempt and prevented our client from being put in jail for not paying an attorney’s fee award that he could not afford to pay.