Collection of Past Due
Child Support
By: Michael J. ChieroThe filing of a Petition for Adjudication of
Indirect Civil Contempt of Court (“Petition”) is the most effective means to
collect past due child support. If a court
adjudicates a person to be in indirect civil contempt of court, the person is referred to
as a Contemnor. Commonly, many practitioners and judges refer to such a Petition as a
“Petition for Rule To Show Cause.”
The term “indirect contempt” refers to conduct by the alleged
Contemnor that occurred outside the presence of the judge or court (i.e. failing to obey
an order to pay child support).
Further, the term “civil contempt” refers to a civil
proceeding within the pending case (dissolution of marriage proceedings, parentage
proceedings, or family support proceedings) with the purpose of coercing or compelling the
alleged Contemnor to obey an order of Court. The purpose of civil contempt proceedings is
not to punish the alleged Contemnor.
The adjudication of a Petition for Adjudication of Indirect Civil
Contempt of Court is a four-step process: the filing of a verified Petition, the service
of a Petition and Notice of Motion, the issuance of a Rule or Order to Show Cause, and an
evidentiary hearing on the merits of the Petition.
A verified petition is one that contains a “verification
clause” that acknowledges the following:
- The Petitioner
has read the Petition.
- The Petitioner
has provided information to the best of his/her belief that is true and accurate; and
- The Petition
is being filed with the consent of the Petitioner.
The Petitioner serves the verified Petition upon the alleged Contemnor
via regular U.S. Mail. The mailing should
also include a Notice of Motion indicating the time and place of the first court hearing.
Upon the initial presentation of the Petition to the Court, the first
issue is whether the Petition is verified. If the Petition contains a verification clause,
the next issue becomes whether the Petitioner alleges a “prima facie” case of
indirect civil contempt of Court.
To properly allege a “prima facie” case of indirect civil
contempt of court, the verified Petition must allege the following:
- A valid court
order exists;
- The order
requires the alleged Contemnor to perform a specific act (i.e. to pay child support at a
specific time, in a certain amount);
- The alleged
Contemnor has knowledge of the valid order;
- The alleged
Contemnor has the ability to comply with the order; and
- The alleged
Contemnor intentionally, willfully and contumaciously disobeyed the order.
The simplest way to establish, as part of a prima facie case, that the
alleged Contemnor intentionally failed to comply with a child support order is to present
a certified child support printout for the circuit clerk’s office detailing that the
child support payments are in arrears.
The law requires child support orders to contain specific dollar
amounts, thereby making them enforceable, through contempt proceedings or otherwise.
A child support obligor has notice of an order if he or she actually
receives a copy of the order. Further, the
obligor is presumed to have notice of an order that his or her attorney receives.
If the Court determines that the Petition alleges a "prima
facie" case of contempt, the judge will issue a Rule or Order to Show Cause
("Rule"). A Rule is a Court order
that requires an alleged Contemnor to appear in court on a date certain and "show
cause" why the Court should not hold him or her in civil contempt.
Next, the Petitioner must serve the Rule upon the alleged Contemnor. The Petitioner may properly serve the Rule by
mailing it to the alleged Contemnor via Certified US Mail.
If the alleged Contemnor is present in court for the issuance of the Rule,
the sheriff's deputy will personally serve the Rule upon him or her.
Sometimes, the Court will hold an evidentiary hearing immediately upon
issuing the Rule. However, the Court may
draft the Rule to require the alleged Contemnor appear in Court for an evidentiary hearing
at a later date. The issuance of a Rule is
significant because the failure of the alleged Contemnor to appear for the contempt
hearing, after receiving service of the Rule, will result in the issuance of a body writ. Once issued, a body writ requires the sheriff to
arrest the alleged Contemnor and bring him or her before the Court for the contempt
hearing. The Court cannot conduct the hearing
on the Petition in the absence of the alleged Contemnor.
At the contempt hearing, the Petitioner should present his or her
"prima face" case to the Court. Many
courts mistakenly fail to require the Petitioner to present a "prima face" case
of contempt after the issuance of the Rule.
Next, the alleged Contemnor faces the burden of proving that the Court
should not hold him or her indirect civil contempt of court. Timely compliance with the order is a complete
defense to the contempt charges. The most
common defense to a contempt petition regarding non-payment of child support is the
inability of the obligor to make the support payments.
When the Court considers the merits of an argument that the alleged
Contemnor has an inability to comply with the order, it will seek to determine whether he
or she acted improperly in creating the inability to comply. For example, a court will not consider the
inability to pay child support as a defense to contempt charges if the obligor lost his or
her paycheck at the racetrack.
Upon a finding that the child support obligor intentionally, willfully
and contumaciously failed to comply with an order to pay child support, the Court will
adjudicate the Contemnor as being in indirect civil contempt of court.
An adjudication of indirect civil contempt grants the Court powers to
compel the payment of child support. The most effective means of compelling a Contemnor to
pay child support is to sentence him or her to incarceration in the county jail. Because
punishment is not the purpose of civil contempt proceedings, a Court can only sentence a
Contemnor to incarceration for a maximum period of six months, and the Court must allow
the Contemnor an opportunity to “purge” himself or herself of contempt.
In determining a proper purge provision, with which the Contemnor must
comply in order to free himself or herself from incarceration, the Court must decide how
much money the Contemnor can reasonably pay toward his or her child support arrearage.
Frequently, the Court will set a purge amount at a sum less than the total amount of the
child support arrearage. Setting the purge amount at an unreasonably high sum renders the
Contemnor unable to purge the contempt and results in punishment in the form of six months
of incarceration.
When the Court sets the purge amount at a sum less then the total
amount of the child support arrearage, the Contemnor will be required to first pay the
purge amount and then make periodic payments towards the remaining arrearage.
If a Contemnor is more than ninety (90) days in arrears on his or her
child support obligation, the Court can suspend his or her driving privileges to compel
compliance with the child support order.
Further, when the Court holds a child support obligor in indirect civil
contempt of court, the Court must order the Contemnor to pay for the obligee’s
reasonable attorneys fees and costs incurred in the contempt proceedings.
Often, the child support obligor will bring his or her child support
obligation current after the filing of the Petition but before the evidentiary hearing.
While the Court may decide not to making a contempt finding when the support obligation is
current, the Court may make a finding that the obligor “lacked compelling cause or
justification” in failing to timely pay child support prior to the filing of the
Petition. Once the Court finds that the obligor lacked compelling cause or justification
in not timely paying child support, the Court must order the obligor to pay for the
obligee’s reasonable attorneys fees and costs incurred in the court proceedings.
The threats of incarceration, the loss of driving privileges and an
order requiring the payment of the obligee’s attorneys fees make the filing a of a
Petition for Adjudication of Indirect Civil Contempt of Court the most effective means of
collecting past due child support.
|
