
    Rayburn PAULK, Petitioner, v. John H. BRAXTON, as Sheriff of Holmes County, Florida, and Louise Paulk, Respondents.
    No. 90-323.
    District Court of Appeal of Florida, First District.
    Feb. 26, 1990.
    On Rehearing April 27, 1990.
    
      Andrew J. Decker III, Live Oak, for petitioner.
    Bonnie K. Roberts, Bonifay, for respondent Louise Paulk.
   PER CURIAM.

Rayburn Paulk sought relief from this court by petition for writ of prohibition or habeas corpus, contending his incarceration for contempt for failure to pay an alimony arrearage was improper. We denied prohibition finding the remedy was inappropriate where the trial court had already acted, English v. McCrary, 348 So.2d 293, 297 (Fla.1977). After issuing an order directing the former wife to respond to the petition for writ of habeas corpus and considering the merits of the response, we granted relief by unpublished order. We now issue this opinion to explicate our reasons for doing so.

Petitioner was ordered to pay alimony in the amount of $900 per month, effective May 1986. When an arrearage' of $18,900 was declared on February 8, 1988, Paulk appealed to this court and a stay was ordered. After the appeal was voluntarily dismissed, the trial court dissolved the stay and by order of April 12, 1989, reinstated the arrearage and found that an additional $8,800 in arrearages had accrued in the interim. With interest calculated and added to the amount due former wife, the total arrearage was found to be $31,814.63. It was found Paulk had the present ability to pay the amount due his former wife and the sheriff was authorized to immediately incarcerate him with the provision that Paulk could purge the contempt by paying the total arrearage amount. Additionally, the order reduced the arrearage to a judgment for which execution could issue. Shortly thereafter, however, Paulk filed for bankruptcy and that court issued a stay of all proceedings against petitioner.

Subsequently, upon motion of former wife, the bankruptcy court lifted its stay insofar as it affected her efforts to collect alimony. On January 10, 1990, former wife moved the trial court to enforce the order of April 12,1989. It was alleged that in addition to amounts described above, further arrearages had accrued in the interim. Petitioner contends that at a hearing on the motion, counsel for the former wife stipulated Paulk did not have the present ability to pay the entire purge amount but the trial court nevertheless orally ordered Paulk be taken into custody by the sheriff.

We find the actions of the circuit court deficient in several respects. Initially, an oral order cannot serve to sustain the incarceration of petitioner, Rowls v. Boone, 427 So.2d 220 (Fla. 1st DCA 1983). Nor can the order of April 12, 1989, serve to justify the incarceration since, by reducing the arrearage to judgment, the lower court eliminated incarceration as a means to enforce its orders. The two remedies are mutually exclusive, Lamm v. Chapman, 413 So.2d 749, 753 (Fla.1982); Rosenberg v. Rosenberg, 452 So.2d 620 (Fla. 3d DCA), dismissed, 458 So.2d 273 (Fla.1984).

Counsel for former wife admits that at the hearing she stipulated Paulk did not have the present ability to pay the purge amount. She argues this is irrelevant as the lower court was only enforcing the terms of an order entered several months before which included a finding that the contemnor had the present ability to pay the purge amount. As we have discussed, incarceration was not available as a remedy to collect this arrearage once it was reduced to a judgment. The trial court’s order of April 12, 1989, would not preclude civil contempt as a means of enforcing an alimony award for arrearages which accrued subsequent to that date, so long as a written order was rendered which included a finding that the contemnor had the present ability to pay the purge amount, Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). Such an order, however, has not been entered.

Respondent also indicates there was evidence at hearing that Paulk had intentionally divested himself of the ability to pay. If this were so, the proper remedy is a proceeding in criminal contempt, with the attendant procedural safeguards, rather than civil contempt, Bowen; Moskowitz v. Moskowitz, 549 So.2d 781 (Fla. 4th DCA 1989).

Finally, we address former wife’s contention that petitioner failed to join an indispensable party to these proceedings, her former counsel, who also obtained an order of enforcement on April 12, 1989, as to attorney fees due and owing. Thus, argues respondent, the incarceration of her former husband was also based on his contemptuous failure to comply with this circuit court order and the former attorney should have been named a party to this proceeding. We disagree. The April; 12, 1989, order relating to attorney fees also reduces the amount due to a judgment, thus running afoul of the exclusive remedies problem described above. There has also been no showing that the bankruptcy court had lifted its stay as to that indebtedness.

Upon consideration of the foregoing, we have found the incarceration of Rayburn Paulk for civil contempt was improper and we issued the writ of habeas corpus and ordered his release.

WRIT ISSUED.

SHIVERS, C.J., and SMITH and NIMMONS, JJ., concur.

ON REHEARING

On February 26, 1990, we issued a published opinion setting forth our reasons for granting a writ of habeas corpus and ordering the release of Mr. Paulk, who had been adjudged in contempt of court for failure to pay certain alimony arrearages. Among our reasons for granting relief was our finding that because some of the ar-rearages had been reduced to a judgment, the trial court was precluded from using its contempt powers under the holding in Lamm v. Chapman, 413 So.2d 749 (Fla.1982). It has come to our attention, however, that after Lamm was decided the 1986 Florida Legislature enacted section 61.17(3), Florida Statutes (1989), which provides in pertinent part that “[t]he entry of a judgment for arrearages for child support, alimony, or attorney’s fees and costs does not preclude a subsequent contempt proceeding ... for failure of an obligor to pay the child support, alimony, attorney’s fees, or costs for which the judgment was entered.” Accordingly, we sua sponte grant rehearing and withdraw those portions of our opinion based on the “mutually exclusive remedies” rationale of Lamm, acknowledging as we must the controlling effect of the statute in the absence of any challenge thereto. We, note that the Lamm holding was apparently based on Article I, section 11 of the Florida Constitution, see Lamm, 413 So.2d at 753 (Sund-berg, C.J., concurring in part and dissenting in part), but we decline to venture any opinion as to whether a constitutional challenge to section 61.17(3) might ultimately prevail. Our research did not reveal any reported appellate decisions regarding the statute’s validity.

We find that petitioner was nevertheless entitled to the relief he sought. As stated in our prior opinion, his former wife stipulated at the hearing that he did not have the present ability to pay the substantial purge amount that had also been reduced to a judgment. Incarceration for civil contempt in light of that stipulation clearly would have been improper, Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). Incarceration based on subsequently accruing ar-rearages was impermissible in the absence of a written order, Rowls v. Boone, 427 So.2d 220 (Fla. 1st DCA 1983). Finally, no showing was made that the bankruptcy court had lifted its stay as to the efforts of former wife’s former counsel to collect a fee and therefore the circuit court apparently was barred from enforcement of that indebtedness.

SUA SPONTE REHEARING GRANTED; WRIT ISSUED.

SHIVERS, C.J., and SMITH and NIMMONS, JJ., concur.  