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UPDATE: The Indiana Court of Appeals issued
a Published Opinion in June of 2014 affirming
the right to pauper counsel in child support contempt proceedings.
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Child support payment orders can produce significant contention in a dissolution or paternity case and are likely to exacerbate problems in an already contentious proceeding. It is therefore imperative that courts set amounts that are appropriate for both parents. It has been well established that the greater the involvement of a non custodial parent with the child the greater the compliance with support orders. But even with just orders and sufficient parenting time lapses or complete cessation in support payments can and do occur.
The Indiana Supreme Court has held that contempt is available to assist in the enforcement of a child support order so long as the delinquency was the result of a willful failure by the parent to comply with the support order and the parent has the financial ability to comply. Pettit v. Pettit, 626 N.E.2d 444, 447 (Ind. 1993). Civil contempt is also known as “coercive” or “remedial” contempt because it seeks to remedy the violation of a court order. The purpose of the contempt is to persuade the contemnor to obey a previous order. Indirect civil contempt is a willful violation of a court order intended to benefit an aggrieved party that takes place outside the trial court’s presence. See In re Paternity of M.F., 956 N.E.2d 1157, 1163 (Ind. Ct. App. 2011).
The Clark County Prosecutor's Office provides this guidance about contempt proceedings.
If the court finds that a person is delinquent in the payment of child support as a result of an intentional violation of an order for support, the court may find the person in contempt of court. As a result of this finding, the Court has the authority to commit the person to jail for a reasonable time, usually up to a maximum of 180 days. While this is a civil and not a criminal proceeding, and does not result in a "conviction," the threat of incarceration often operates as a strong incentive to pay the ordered support.
The Child Support Division is required to file a Verified Information for a hearing on a Rule to Show Cause when a person is delinquent in child support payments and there is evidence of willful non-payment of child support. This is a legal pleading demanding that the person "show cause" why they should not be held in contempt of court for failure to pay child support. However, in order for the person to be held in contempt of court, it is necessary that they receive notice of the hearing, understand the nature of the allegations against them and have an attorney present before sentencing. Notice of the hearing is ordinarily accomplished through certified mail or personal service by the Sheriff. At the hearing, it must then be established that the person was aware of the support order, had the ability to pay, and willfully failed to pay in compliance with the order.
Civil contempt consists of a violation of a court order resulting in a proceeding for the benefit of the aggrieved party, and any penalty in a civil contempt proceeding must be coercive or remedial in nature; by contrast, criminal contempt consists of an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), trans. denied.
In contempt cases the alleged contemnor must be given notice of the alleged contemptuous acts such that he or she has adequate time to prepare a defense. Showalter v. Brubaker, 650 N.E.2d 693, 701 (Ind. Ct. App. 1995). “Failure to give such notice results in prejudice to the defendant.” Id. However, parties may impliedly consent to trial of an unpled issue where both parties litigate the new issue during the proceedings. Columbia Club, Inc. v. American Fletcher Realty Corp., 720 N.E.2d 411, 423 (Ind. Ct. App. 1999), trans. denied.
Contempt to collect child support includes the possibility of imprisonment. Penalties designed to compel future compliance with a court order are considered to be coercive and avoidable through obedience. Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994). Thus, if the court uses imprisonment to coerce the defendant into doing an affirmative act, the court must provide the defendant with “‘the key of his prison in his own pocket.’” Moore v. Ferguson, 680 N.E.2d 862, 865 Ind. Ct. App. 1997) (quoting Webster v. State, 673 N.E.2d 509, 512 (Ind. Ct. App. 1996)). Thus, a contemnor jailed for contempt of court as failure to abide by the court's child support payment plan must be able to release himself by complying with the order – paying the arrears.
Not all support arrears are enforceable through the possibility of imprisonment though. In re Paternity of L.A. by Eppinger v. Adams, 803 N.E.2d 1196 (Ind.Ct.App.2004), trans. denied, the court noted that in that case the prosecutor's office filed an information for rule to show cause why the father should not be held in contempt for his failure to pay a child support arrearage. Id. at 1197-1198. The trial court discharged the rule to show cause because it concluded: Once a child is emancipated and the “natural duty” of the parents to provide for the maintenance of the child no longer exists, whether a request for relief under IC 31-16-12-6 is prosecuted by a “trustee” collecting child support or the trustee's assignee, the use of contempt remedies such as attachment and imprisonment to enforce a child support arrearage would violate of [sic] Article 1, § 22 of the Indiana Constitution which prohibits “imprisonment for debt, except in the case of fraud.” Id. at 1198. On appeal, the court agreed and concluded “that the use of contempt to enforce an order for child support arrearage after a child is emancipated is prohibited by Article One, Section Twenty-Two of the Indiana Constitution.” Id. at 1201. This opinion relied upon Corbridge v. Corbridge, 230 Ind. 201, 207, 102 N.E.2d 764, 767 (1952), where our supreme court held: The extraordinary remedy of attachment for a civil contempt of court is available, not for the protection of the one having custody of the child, but for the benefit of the child, so that it may not want for necessities during the period of its minority. When the child reaches its majority the purpose and justification for the extraordinary remedy cease, and the court has no right to coerce the back payments of support by imprisonment. Corbridge, 230 Ind. at 207, 102 N.E.2d at 767.
This is the type of restriction placed upon judges that often times elude the lay person whose concepts of judicial procedures usually reside in broad or general interpretations. The trained practitioners are sometimes no better but in general are much more effective at ensuring due process than the self-represented litigant. Indiana Code section 34-47-3-5 includes a list of procedural safeguards for those charged with indirect contempt.
(a) In all cases of indirect contempts, the person charged with indirect contempt is entitled:
(1) before answering the charge; or
(2) being punished for the contempt;
to be served with a rule of the court against which the contempt was alleged to have been committed.
(b) The rule to show cause must:
(1) clearly and distinctly set forth the facts that are alleged to constitute the contempt;
(2) specify the time and place of the facts with reasonable certainty, as to inform the defendant of the nature and circumstances of the charge against the defendant; and
(3) specify a time and place at which the defendant is required to show cause, in the court, why the defendant should not be attached and punished for such contempt.
(c) The court shall, on proper showing, extend the time provided under subsection (b)(3) to give the defendant a reasonable and just opportunity to be purged of the contempt.
(d) A rule provided for under subsection (b) may not issue until the facts alleged to constitute the contempt have been:
(1) brought to the knowledge of the court by an information; and
(2) duly verified by the oath of affirmation of some officers of the court or other responsible person.
As added by P.L.1-1998, SEC.43.
Indirect contempt proceedings may be used to enforce child support obligations. Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005). Such proceedings require an array of due process protections, including notice and the opportunity to be heard. In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App. 2007). This is provided by statute as I have just shown. Our statutory framework does not provide for the right to counsel in a civil contempt proceeding. However, our reviewing courts have established a right to counsel when certain criteria are met. A person may not be incarcerated by the government without first being advised of his or her constitutional right to counsel. Marks, 839 N.E.2d at 706. If an individual is in jeopardy of incarceration because of a contempt proceeding and that person is indigent, he or she may not be incarcerated without having counsel appointed to represent him or her. Id. It is error if the court imprisons a contemnor without first providing him or her with the opportunity to obtain the assistance of counsel.
Looking to federal law and rulings by the federal courts does not provide any clearer right. The Fourteenth Amendment’s Due Process Clause does not automatically require the State to provide counsel at civil contempt proceedings to an indigent noncustodial parent who is subject to a child support order, even if that individual faces incarceration. In particular, that Clause does not require that counsel be provided where the opposing parent or other custodian is not represented by counsel and the State provides alternative procedural safeguards equivalent to adequate notice of the importance of the ability to pay, a fair opportunity to present, and to dispute, relevant information, and express court findings as to the supporting parent’s ability to comply with the support order.
Due process does not always require the provision of counsel in civil proceedings where incarceration is threatened. See Gagnon v. Scarpelli, 411 U. S. 778. Because a contempt proceeding to compel support payments is civil, the question whether the “specific dictates of due process” require appointed counsel is determined by examining the “distinct factors” this Court has used to decide what specific safeguards are needed to make a civil proceeding fundamentally fair. Mathews v. Eldridge, 424 U. S. 319, 335. As relevant here those factors include (1) the nature of “the private interest that will be affected,” (2) the comparative “risk” of an “erroneous deprivation” of that interest with and without “additional or substitute procedural safeguards,” and (3) the nature and magnitude of any countervailing interest in not providing “additional or substitute procedural requirement[s].” Ibid.
This dictates that the right to counsel must be decided on a case-by-case basis. The Mathews court did not leave the decision entirely to judicial discretion however. It provided that guidance in saying “substitute procedural safeguards,” if employed together, can significantly reduce the risk of an erroneous deprivation of liberty. These include (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Mathews, supra, at 335,
In Turner v. Rogers, [564 U.S. ___, 131 S. Ct. 2507 (2011)] the US Supreme Court [SCOTUS] overturned an order of incarceration for civil contempt as non payment of child support. Under the circumstances, Turner’s incarceration violated due process because he received neither counsel nor the benefit of alternative procedures like those the Court describes. He did not have clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. And the trial court did not find that he was able to pay his arrearage, but nonetheless found him in civil contempt and ordered him incarcerated.
This was not the argument made by Turner in the case. Turner argued to SCOTUS that his incarceration was improper because he was entitled to legal counsel. Justice Thomas in his dissent said he would have let the lower court opinion stand because Turner was not entitled to counsel. It was the US Government who filed an amicus brief raising the issue of due process which the court took up in it's analysis. This goes against long standing decisions about deciding matters not raised in the lower courts. SCOTUS has held that it is the wise and settled general practice of this Court not to consider an issue in the first instance, much less one raised only by an amicus. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”); Adarand Constructors, Inc. v. Mineta, 534 U. S. 103, 110 (2001) (per curiam) (“[T]his is a court of final review and not first view” (internal quotation marks omitted)); United Parcel Service, Inc. v. Mitchell, 451 U. S. 56, 60, n. 2 (1981). Technically the South Carolina ruling should have been upheld but this case had the potential to affect many others and more clearly establish guidelines to lower courts.
Action Transmittal 12-01 from the Commissioner of the Office of Child Support Enforcement provides an analysis of the Supreme Court decision and policy recommendations to guide state child support enforcement practices into alignment with the holding in Turner v. Rogers. It recommends that states using incarceration in civil contempt proceedings to compel child support payments adopt the following procedures:
A. IV-D agencies should consider screening cases for actual and present ability to pay before referring or initiating civil contempt proceedings that can lead to incarceration.
B. Notice should be provided to the obligor that “ability to pay” is a critical issue in the contempt proceeding.
C. Judicial procedures should provide an opportunity for the defendant to be heard on the issue of ability to pay and result in express court findings [i.e. a written determination by the court].
Alleged contemnors should look to those recommendations as a minimum to be observed in their particular case.
The Federal Government believes that “the routine use of contempt for non payment of child support is likely to be an ineffective strategy,” the Government also tells us that “coercive enforcement remedies, such as contempt, have a role to play.” Turner v. Rogers, 564 U.S. Brief for United States as Amicus Curiae 21–22, and n. 8 (citing Dept. of Health and Human Services, National Child Support Enforcement, Strategic Plan: FY2005–2009, pp. 2, 10).
Notwithstanding enforcement of child support payment orders through contempt proceedings which threaten jail time will still be used. The federal constitution does not provide an absolute right to the appointment of counsel for alleged contemnors, even those who are indigent. Clearly procedural safeguards where established through Turner v Rogers that focus more on the ability to pay and informing the contemnor that this will be the crux of the proceeding. The Indiana Constitution and case law provides a stronger safeguard for alleged contemnors and that the right to counsel is an absolute before one can be incarcerated.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
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