Wix v. Wix
Wix v. Wix
Opinion of the Court
Claudia Wix, the former wife, appeals a postdissolution order denying her motions to vacate the findings of a magistrate and to find her former husband, Donald Wix, in contempt of court. The former wife’s contempt motion was filed after the former husband failed to pay alimony as required by the parties’ second amended final judgment of dissolution of marriage. After the magistrate issued her report and recommendation declining to find the former husband in contempt, the former wife filed her motion to vacate. The trial court ultimately denied the motion to vacate and adopted the magistrate’s report and recommendation, thereby denying the former wife’s motion for contempt. We conclude that because the trial court failed to consider the former husband’s 401k as part of his ability to pay the' alimony arrearages, the trial court’s order must be reversed.
We review the trial court’s adoption and ratification of a general magistrate’s report and recommendations for abuse of discretion. Drdek v. Drdek, 79 So.3d 216, 216 (Fla. 4th DCA 2012).
Because an alimony provision in a final judgment of dissolution is based on a finding that the payor has the ability to pay, that creates a presumption for subsequent proceedings that there is an ability to pay. See Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla. 1985). In a civil contempt proceeding, once the movant has established that there is a prior court order directing the payment of alimony and that the payor has failed to make payments,
[t]he 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.
The former husband argues that because he was not found in contempt, the magistrate, and later the trial court, correctly determined that he was not obligated to use the 401k for purposes of paying the alimony arrearage. We recognize that the court in Bowen referred to a second step in a contempt analysis. Specifically, when a court has found that a civil contempt has occurred, it must determine the appropriate means of obtaining compliance and, if incarceration is selected, “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.” 471 So.2d at 1279. In determining ability to pay, the trial court “may look to all assets from which the amount might be obtained.” Id.
Similarly, in Dorsey v. Dorsey, 961 So.2d 1108 (Fla. 2d DCA 2007), we concluded that the payor’s IRA account could be considered for purposes of paying an alimony arrearage despite the trial court’s conclusion that the payor was not in contempt. Although we reversed the trial court’s order requiring payment out of the IRA account, we did so only to the extent that it required alimony to be paid ahead of an IRS debt which the parties had agreed would be paid first. Id. at 1110. However we specifically held that after payment of the IRS debt, “any remaining balance in that IRA ... will be available to [the former husband] to pay alimony.” Id. In reaching that conclusion, we agreed with the Fourth District’s opinion in Sie-gel, 700 So.2d 414, wherein the court determined that a payor spouse cannot claim inability to pay while at the same time using an IRA to hoard assets.
The fact that the account in question here is a 401k rather than an IRA account does not require a different result. As noted by the court in Siegel, there are various provisions within chapter 61, Florida Statues, that provide that retirement accounts are to be included in the analysis of what assets are available for purposes of equitable distribution and support. Siegel, 700 So.2d at 415; see also §§ 61.076, 61.08(2)(d) & (i), 61.30(2)(a)(7), Fla. Stat. (2011).
Consequently, because the magistrate failed to consider the former husband’s 401k account as an available asset in determining whether the former husband was in contempt, the trial court abused its discretion by adopting the magistrate’s report and recommendation and by denying the former wife’s motions to vacate and for
Reversed.
. Jackson involved a prejudgment temporary support order and thus was reviewable via a petition for writ of certiorari.
. Although in Jackson this court noted the former husband’s controlling role in operating the corporation that held the account and the fact that he was using the account to fund his personal expenses, 98 So.3d at 114, those distinguishing facts are not dispositive of the issue in this case: whether a 401k may be considered as part of the analysis in determining whether a payor spouse is willfully refusing to pay alimony.
The problematic finding in this case was that the former husband should not be required to deplete his assets in order to pay alimony. That finding suggests the magistrate did not believe she had to consider the 401k as an available asset for purposes of paying the alimony arrearage.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.