See CSQuest article Civil Contempt Legal Authority.
First, Child Support Services (CSS) must gather evidence regarding the obligor’s ability to pay. In order to successfully pursue contempt, there are two distinct questions that must be answered:
Was the non-payment willful?
That is, did the obligor have the means and ability to pay the ordered amounts during the time period for which CSS would be seeking a contempt citation?
If the obligor did not have the means or ability to pay during the time period when he or she missed the payments, a finding of guilt may not be possible.
Examples of situations where CSS has evidence of the obligor’s ability to pay during the contempt time period and would pursue contempt:
- The custodial person (CP) or other sources provide evidence that the obligor was working or had the ability to work, such as a prior job history;
- The CP or other sources provide information that obligor had assets; or
- Obligor has received a tax refund that indicates past employment.
Examples of situations where CSS has evidence of the obligor’s inability to pay during the contempt time period and would not pursue contempt:
- Obligor was incarcerated with no other income or assets;
- Obligor has provided evidence of inability to work due to disability; or
- Obligor was receiving Temporary
Assistance for Needy Families (TANF) or Supplemental Security Income (SSI) during that time period.
Does the obligor have the present ability to pay or otherwise meet acceptable purge conditions?
Because indirect contempt is civil and not for punishment, it is illegal to incarcerate him or her if there is no way that purge conditions can be met. The obligor must “have the keys to the jail in his own pocket, ”as the cases say, in order for his or her confinement not to be akin to the old debtor’s prisons that were banned many years ago. Obviously if the obligor has assets that can be applied to the debt or will be receiving a lump sum payment, there is a present ability to purge at least part of the arrearages depending on what is due. Otherwise, purge conditions may have to be fashioned around coming into compliance with the current support requirements and an agreement for new installment payments on a judgment. The statutes and court rules give CSS and the District Courts latitude in crafting purge conditions; the important thing is to get the obligor back on track and no longer willfully disobeying the court’s orders.When considering the obligor’s present ability to pay, the same kind of information used in the examples above can be applied to the analysis for the current time period.
- If the CP or CSS has information that the obligor is currently working or has assets, CSS would use that information to craft a purge plan consistent with the evidence.
- Similarly, if there is evidence that the obligor is currently receiving TANF or SSI, CSS will not be able to request sentencing because the obligor has no present ability to purge the contempt.
If the screening process reveals no evidence of the obligor’s past and present ability to pay, remedies other than contempt must be used or the office must use other efforts to discover income and assets of the obligor before a contempt action may be filed.
Practice Tip: What if the obligor had the ability to pay in the past, but now does not?
CSS may lawfully be able to file contempt on an obligor who willfully failed to pay in the past and has no means now, but should we? Should we try something else now and wait to try contempt until he or she does have the present ability to meet purge conditions later? Every case is different and these kinds of decisions must be made on a case by case basis. The principle of “res judicata” (“the thing has been decided”) limits us to only filing a contempt citation once for any specific time period on non-payment, so the office may decide to try another remedy first, such as a Seek Work Order, Hearing on Assets, or Notice of Intent to Revoke License, as appropriate.
Practice Tip: What if we already filed contempt and then discover that the obligor has no means to pay?
The critical situation to avoid is to have the court sentence the obligor to incarceration with no means of meeting purge conditions. CSS must either dismiss the contempt or work with the court to find purge conditions that the obligor can meet. Otherwise incarceration would be illegal since he or she had not been afforded the due process protections of a criminal proceeding under the state and federal constitutions.
Practice Tip: Can we file contempt in an interest only arrears case?
Just as in other cases, itis possible to file a contempt action against an obligor for failing to comply with the monthly court ordered judgment payments in an interest only arrears case, as long as other criteria for filing a contempt action are met. Before filing, however, offices should carefully consider how this would be received by the judiciary, as some judges consider contempt an inappropriate remedy in cases where current support is no longer due. When deciding whether to proceed, consult with the State’s Attorney about whether contempt is appropriate based on the facts of the case and whether other remedies may be effective.