Contempt and Punishment for Non-Support

Chapter 10

Contempt and Punishment for Non-Support

by Kenneth Turner

In the context of child support, contempt of court is the willful failure or refusal to pay support as ordered by the court.’ Contempt is used as a coercive sanction to force the obligor (payor) to comply with the court’s order.2 The jail sentence imposed by the judge can be avoided or terminated when the errant parent makes a purge payment, a payment of all or a part of the arrears. In this respect it is said that the contemnor (the person guilty of contempt) has the keys to the jail in his pocket. The choice of whether to meet the obligations or go to jail is within the person’s ability to c ontr ol.

Contempt Initiated

The contempt proceeding is started by a SN orn petition alleging that an order of support exists and that the payor has failed to obey the terms of the order. Initially the mov- ing party (petitioner) must show the existence of a court order for support. Thereafter, the duty is on the obligor3 to show that the terms of the order have been complied with or to show just cause why the order was not complied The payor must show that the failure to pay the support at ordered was not u illful.5

Determination of the Reasons for Failing to Pay

To find a payor in contempt, the court must be satisfied that the payor had the ability to comply with the court’s order and willfully refused. “The burden of proof is upon the alleged contemnor to show that, acting in good faith, and with an honest purpose to comply with the order of the court, he was unable to do SO."^

If the payor was honestly unable to comply7 he cannot be found in contempt. The ability to comply with the support order, however, is measured by the payor’s earning capacity rather than his actual income. In compliance with PL 98-378, this includes an evaluation of his total income including unemployment insurance, tax rebates, property.

Offset of State and Federal Income Tax Refunds

For both welfare and non-welfare families, the state must offset state income tax refunds for overdue child support, in appropriate cases.

The state can request offset of Federal income tax refunds payable in 1986 through 1990 for non-welfare families, due process

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requirements and joint return protections included.

State and Federal Income Tax Refund Offsets

States must offset state income tax refunds for welfare and non-welfare families. Monies collected on behalf of welfare families go toward reimbursing AFDC payments; non- welfare collections go to the family.

States can request offset of Federal income tax refunds for both welfare and non-welfare families, and the monies are similarly dis- bursed as under state tax offset. (Summaries from P.L. 98-378)

A willful failure or refusal to work generally shows “bad faith and a lack of honest purpose”and indicates an attempt to circum- vent the purpose and intent of the court’s order. As such, it shows contempt.

To find the payor in contempt the court must be satisfied that the payor had the ability to pay and willfully refused.* An inability to pay which is due to circumstances arising after the entry of the order,9 rather than neg- lect or refusal, may excuse noncompliance. Incurring new obligations, or debts, however, is not an excuse. The Child Support Enforce- ment Amendments of 1984 state the obligation to support takes precedence over all debts or financial obligations including mort- gages, charge accounts, automobile payments or other credit card obligations.

Defenses of Contempt

Proof that the alleged contemnor has complied with the court’s order to pay support is a good defense. The court will have no problem establishing that a contempt does not exist if payments have been made to a child support agency or if the payor has can- celled checks signed by the payee. On the other hand, the mere tendering of a handful of money order receipts is insufficient evidence of payment; these receipts are not proof of who received the money. Money order receipts could easily be receipts for the payor’s rent, phone bill, or other obligations.

Another valid defense is that the payor was unable to complylo at the time the payment was due.” However, unemployment is not a

justifiable defense if the obligor has the money in the bank or in stocks or bonds, has other resources of income or if the unemployment was voluntary.

Unemployment benefits and tax intercepts are also a source for payment. After careful evaluation, the individual without an income, a capacity to earn income, a source of outside income, or the ownership of property, may be temporarily excused from payment.

Advise of counsel is not a justification for failure to obey a court order but may be considered in mitigation. I *

The contemnor must demonstrate inability to comply with the court’s order for valid reasons. Unwillingness13 to pay is contempt per se. A willful failure or refusal to work generally indicates “bad faith and a lack of honest purpose”and should not be allowed as an excuse for failure to pay.14

The fact that the payee is guilty of wrongful conduct, including denial of visitation, does not excuse contemptuous conduct on the part of the payor. Nor is the equitable defense of laches generally alloed as an excuse.15 The excuses that payment would have resulted in a hardship to the payor or that the payee did not need the money are not valid reasons for non-payment of support.

Punishment

The usual punishment for contempt of court is confinement in jail until the contemptuous act is purged by paying all or a part of support arrearages.16

If the payor is found to be in contempt the court must determine if he has the present ability to comply with all or a part of the order.” Without the present ability to comply the court is limited to confining the payor for a definite period of time.’* If he has the present ability to make a purge payment (for all or a part of the arrearage) and refuses to do so, he may be confined indefinitely until he makes the payment.

Under appropriate circumstances, the court may also wish to impose a statutory fine for each act of contempt or other alternatives to coerce compliance.l9

Confinement in and of itself, however, will not lead to an efficient collection program or

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the support of the child (children). The support case must be closely monitored for future compliance. As soon as an arrearage occurs the payor should be notified by the collection agency. The sooner he is notified that his non-payment has been noticed and that payment is required, the more likely he is to pay regularly and the arrearages can be kept to a minimum.

The court is exercising its equitable powers to enforce a legal moral obligation to the child and society.20 When the payor is found in contempt and confined until a specified payment is made, child support is not only a legal duty, but also a moral obligation. As a legal obligation, a decree awarding child support can be enforced by all legal remedies for collecting judgments. As a moral duty, however, child support is not a debt, but a moral and societal obligation, enforceable by use of the court’s equitable powers, including spe- cific performance. The contemnor is ordered to pay or go to jail until he does pay.

Because child support is a moral and social duty, the obligation, despite its dual nature, is not considered a debt within the context of state constitutional prohibitions against imprisonment for debt.21

Work Release

Experience has shown it is ineffective to offer work release to personsconfined for failure to pay child support. Overall, work- released payors do not contribute to their child support obligation any more after confinement and the escape rate is high.22

Liens. States must be able to impose liens against real and personal property where appropriate.

Security or Bonds. States must be able to require, where there is a pattern of non- payment or late payment, bonds or security to be deposited with the court from which support payments can be taken where appropriate.

Reports or Credit Bureaus. Upon request from a credit bureau, and after notice to the absent parent, the child support agency must report on overdue support amounts over $1,000, and can report lesser amounts.

Visitation

Child support and child visitation are t n L’ separate obligations and should not be considered together. A failure of one parent iL,

allow visitation does not excuse the nor,- payment of child support. In effect. noz- support for denial of visitation is a puniti\: act against the child to protest the wrongiu; conduct of the custodial parent.

Concordantly, the failure of one parent to pay support should not be used by the custodial parent as a justification for refusing visitation. Despite divorce or separation, the child needs contact with both parents as much as possible. Denial of authorized visitation is also a wrongful act and destructive to the child. Some observations indicate non- supporting parents are usually not interested enough in the children to claim visitation privileges. Other research states parents who honor their visitation rights are more willing to pay child support. Credit Rating

Another possible effective tool for enforc- The Unemployed Payor ing support is for the court to notify consumer credit agencies of the payor’s pay record, arrearages and any outstanding judgments for arrearages in child support. At the same time, the credit agencies may provide a valu- able source of information about the payor’s credit status, sources of income and living standard.23

A frequent excuse given for not paying support is that the payor, an able-bodied parent, is unemployed and cannot find employment, or perhaps has never been employed. This group may be divided into several cate- gories: those who have been unemployed for arelatively short time and are actively seeking employment, those who are chronically unemployed, and those who have never been employed.

If it appears the failure to pay support was

Other

Other provisions of P.L. 98-378 include:

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during a relatively short period of unemployment and was not caused by a willful attempt to avoid the obligation, the payor may not be in contempt of court, but the contempt petition should not necessarily be dismissed at this point. One approach is to require the payor to show evidence that he is looking for a job by having each prospective employer sign and date a form. The delin- quent payor may be ordered to come back to court at a given time with the forms to sub- stantiate his story that he is seeking employment.

It is always advantageous when sentencing a payor to a definite period of confinement to include in the order that the confinement may be terminated by making a stated payment toward all or a part of the existing arrearage. Experience shows that many payors who claim present inability to pay support or have no apparent income are able to pay large purge payments24 in order t o avoid confinement

Another category of non-payors is com- posed of the hard-core unemployed, those who deny to the court the possibility of being employed and will not pay acent toward their support obligation. When questioned, these persons may admit to a little part-time employment every now and then, “but nothing he could pay regular support with.” Failure of the obligor to share any of this admitted income may be considered willful contempt.

The long-term unemployed who shows no present ability to make a purge payment and apparently is not in willful contempt can also be given the “work sheet”and told to return in thirty days to prove employment is being sought.

The hardcore unemployed payor may be able-bodied and physically capable of work, but due to many other factors cannot obtain employment. A jail term for contempt will not resolve this person’s problem and a dif- ferent approach is required.

One novel technique is to compel the hardcore unemployed obligor to attend a course of instruction on how to get a job. These courses may last anywhere from 4 to 8 hours over one or two days, with the obligor’s attendance reported to the court. Profes-

sional employment counselors, industry per- sonnel managers, volunteers and/ or educa- tors provide instruction in simple terms on the basics of how to apply for work: who to see, interview techniques, what to say, how to say it, how to dress and principles of health and grooming.

The lecture phase of the course is followed by a one-on-one practice session, privately, and role playing in front of other small groups of students. There are practice ques- tion and answer sessions with follow-up counseling. At the end of the course a resume is prepared for the payor. He is given the job sheets and told to seek employment.

The payor who refuses to attend the course or thereafter fails to look for work is in willful contempt of court and confinement may be the only alternative.

The Employed Payor

The employed payor may have a variety of excuses for not paying his child support. Some common examples are:

the payor meant to make the payments but forgot. He may promise to make payments in the future. Unfortunately, experience indicates these promises are frequently broken. income reduction and therefore inability to make the full payment or any payment at all. other bills or obligations have been incurred. This makes it impossible for him to meet the support obligation. Generally, a period of confinement in the

countyjail will make it easier for the obligor to find funds to meet the obligations in the future. This behavior may be theindividual’s testing the court to see if the order will be enforced and how much he can get away with. A court which will not punish the obligor for non-payment may encourage further testing of the system by the non-payor and the con- tinuation of failure to pay support.

Courses of action other than jailing for contempt can be equally effective for this group. The first is an income assignment order to the employer to withhold the support obligation from the obligor’s wages25 and mail payment directly to the court. If there is

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an arrearage, the amount of support by income assignment can be increased to include an extra payment toward the arrearage. If the arrearage is large, an income assignment may be issued together with confinement until a purge payment in an amount within the obligor’s ability is paid.

If an income assignment or purge payment is not available, the existing arrearage may be reduced to judgment and an attachment is issued against personal property and/ or real property, including a garnishment of wages. The Child Support Amendments of 1984, P.L. 98-378, Wage Withholding, provide for the following:

Equal Enforcement Services for Welfare and Non- Welfare Families

A state’s child support enforcement services-establishing paternity, locating absent parents, establishing and enforcing support orders - must be available to all families who apply for them. The new legislation enhances equal treatment through:

Wage Withholding Effective Oct. 1 , 1985, states must provide for wage withholding when the amount due is equal to one month’s support, less if state law permits or absent parent re- quests. It applies to current support and arrearages; Order is issued automatically upon default, the employer and absent parent must be notified, there is no return to court; After Oct. 1, 1985, all support orders initiated by the state include provision for wage withholding; At its option, the state may apply withholding from sources of income other than wages.

Kenneth Turner is judge of the juvenile court in .Memphis, Tenn.

Notes ‘See: “Contempt of Court: a Survey,” 56 Cornell L.

Rev. 183. ?“While particular acts d o not always readily lend

themselves to classification as civil or criminal con-

tempts, a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterent to offenses against the public. McCrone v. United States, 307 U.S. 61 . . . ” Higg-ins v. Lewis, 137 S.W.2d 308, 316 (Tenn. 1939). Also: U.S. v. United Mine Workers, 330 U.S. 258 (1947).

3For a discussion of who must plead ability or inability to comply with the order and upon whom rests the burden of proof see: 53 A.L.R.2d 591-619. Also: Application of Martin, 279 P.2d 877, 878 (Idaho, 1955).

4State ex. rel. Cook. v. Cook, 64 N.E. 567 (Ohio, 1902); Bracken v. Bracken, 182 So.2d 1 (Fla., 1966); Fowlerv. Fowler, 161 P. 227(Okla., 1916); Tuylorv. Taylor, 201 S.W.2d 176, 178 (Ma. 1947).

5 1 7 AM.Jur., Divorce & Separation, $671, 704.5. 6Bradshaw v. Bradshaw, 133 S.W.2d 617 (Tenn.

1939); Higgins v. Lewis, supra, 317. In Bradshau the court found that the contemnor’s mere statement that he was presently unable to comply with the court’s order was not sufficient proof.

’Inability is not a good defense where the inabilir! to comply is brought about by the voluntary conduct of the contemnor. Tucker v . Cornnzon+s.eolth. ! b - S.W.2d 291,295 (Ky., 1945). If the contemnor does not use due diligence attempting to comply with the court’s order his defense of inability should be rejected. Brown vs. Cook, 260 P.2d 544 (Utah. 1953;: citing 17 C.J.S., Contempt 419; 12 A.L.R2d 1059d: 17 AM.Jur.2d, Contempt $51.

8Faircloth vs. Faircloth, 339 So.2d 650 (Fla.. 1976).

gOrielvs. Russell, 278 U.S. 358; 73 L.Ed. 419,424 (1929).

10See: “Notes: The Intent Element in Contempt of Injunctions, Decrees and Court Orders,”48 Mich. L. Rev. 860 (1950) and Mowery vs. Mowery, 363 S. W.2d 405 (Tenn. App., 1962); 53 A. L.r.2d 59 I .

“In Bradshaw vs. Bradshaw, 133 S.W. 2d 617 (Tenn., 1939) the court rejected a plea of inability to comply where the defendant refused to pay while employed, spent his money and then lost his job pleading he was then unable to comply with the support order.

‘2States ex. rel. McKitrrick vs. Koon, 201 S.W. 2d446,456 (Mo., 1947), citing C.J.S., Contempt $38.

ITonsider Gossett vs. Gossett, 241 S.W.2d 934 (Tenn., App., 1951).

14ln Johnson vs. Johnson. 319 P.2d 1107 (Okla., 1957) the respondent never voluntarily worked to support his family but had a possible expectancy from his mother’s estate. The court confined him to prison for a definite period or until he paid the entire arrearage stating in part “the possibility of being forced to serve a fixed sentence does not shock the conscience of a court so long as there is a possibilitb that the defendant will not serve any part of it.“at p. 1 1 1 1

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Y3ee Alig vs. Alig, 1255 S.E.2d 494 (Va., 1979). I6The Supreme Court discussed confinement in the

context of a bankrupt person who failed to turn over his assets: “In the case in hand, the consequence is that, as the order to pay or deliver stands without sufficient reply, it remains what it has been from the first-an order presumed to be right and therefore an order that ought to be enforced. In the pending case, or in any other the court may believe the bankrupt’s assertion that he is not now in possession or control of the money or the goods, and in that event the civil inquiry is a t an end; but it is also true that the assertion may not be believed; and the bankrupt may therefore be subjected to the usual pressure that fol- lows willful disobedience of a lawful command, namely, the inconvenience of being restrained of his liberty. No doubt that may be unpleasant; it is intended to be unpleasant; but I see no reason why the proceeding should be condemned, as if it inter- fered with the liberty of the citizen without sufficient reason or excuse. I have known a brief period of confinement to produce the money promptly, thus justifying the court’s incredulity, and I have also known it to fail. Where it has failed and where a reasonable interval of time has supplied the previous defect in the evidence, and has made sufficiently cer- tain what was doubtful before, namely, the bankrupt’s inability to obey the order, he has always been released, and I need hardly say that he would always have the right to be released, as soon as imprisonment for debt has ceased, but imprisonment to compel obedience to a lawful Judicial order (if it appears that obedience is being willfully refused) has not yet ceased and ought not to cease, unless it should be thought expedient to destroy all respect for the courts by stripping them of power to enforce their lawful decrees.” Orielvs. Russell, 73 L.Ed. 419,425 (1928).

I7Lamm vs. Chapman, 413 So.2d 749 (Fla., 1982) [RA man who is ordered to pay $25 per week and

fails t o make 10 payments before date of the contempt hearing may be guilty of 10 contemptuous acts for which he could be separately fined and impri- soned. See: State vs. Talley, 203 S.W.2d 364 (Tenn., 1947).

”?See: “Basic Issues in Civil Contempt, ” 8 New Mexico L. Rev. 53,7 1.

20Brackin vs. Brackin, 182 So.2d I , 6 (Fla., 1966).

2lSee: “Note, Body Attachment and Body Execu- tion: Forgotten But Not Gone,” 17 Wm. and Mary L. Rev. 543, 550-53 (1976); West vs. West, 101 S.E. 876 (Va., 1920); ApplicationqfMartin, 279 P.2d 877,878 (Idaho, 1955); Taylor vs. Taylor, 201 S.W. 2d 176, 178 (Mo., 1947).

2ZThis opinion seems to be shared by David Chambers in Chambers, Making Fathers Pay 220-

2)15 U.S.C.A. 91681 (9 provides that a consumer reporting agency may furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a government agency. Moreover, $1681 (b) provides for access to consumer credit information pursuant to a court order.

The next step would be for a child support collection agency to report a payor’s child support obligation and pay record to the credit agency as an enforcement tool.

24As reported in “the Use of Contempt of Court t o Enforce Florida Divorce Decrees,”6 Nova L. J. 31 1: According to the “Miami Herald,” September 19, 1981, at 8B, col. 1, Dade County Circuit Court Judge Rainwater cited 480 men, over a period of four days, for contempt of court confining them for nonpay- ment of support. 440 of these men paid out imme- diately pursuant to the terms of the support decree. This shows the effectiveness of a contempt action coupled with confinement.

25It is not uncommon for the obligor to move from the jurisdiction of a court ordering the payment of support in order to avoid the court’s enforcement of the obligation. If the obligor works for a company with an office in the court’s jurisdiction, or for a company with a registered agent for service of process, then garnishment or income assignment is still effective. This is true for military or other federal government employees. Rather than send a URESA petition to the obligor’s new jurisdiction it is more expedient to attach his wages.

See: Hamilton vs. Hamilton, 476 S.W.2d 197 (Ky., 1972); and “Enforcement of Support Obligations: A Solution and Continuing Problems,” 61 Ky. L.J. 322-332, 1972; with citations to cases in various juris- dictions in accord.

221 (1979).

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Documents

Contempt and Punishment for Non-Support