Enforcing with Civil Contempt

1. Enforcing with Civil Contempt Laura Bernacki Stafford Ethan C. McKinney Kevin McNamara ERICSA 50th Annual Training Conference & Exposition ▪ May 19 – 23 ▪ Hilton Orlando Lake Buena Vista, Florida ERICSA 50 CELEBRATES YEARS OF SERVING FAMILIES: THE MAGIC IS STILL ALIVE ERICSA ERICSA ERICSA ERICSA ERICSA

2. Civil Contempt • Willful disobedience of a lawful court order in which the offender had notice. • Not used for punishment, but for coercion to restore the aggrieved party. • Must leave the Defendant the keys to the jailhouse door in his pocket. (US v. US Mine Workers, 330 US 258 (1947).

3. If it is not possible for the Defendant to comply, he must be released. (Morgan v. Foretich, 564 A.2d 1, 1989 D.C. App) • Direct v Indirect Contempt • Direct- actions in presence of court in which court has actual knowledge. • Indirect- against the dignity of the court but for the benefit of the aggrieved party.

4. Authority for Contempt I.C. 31-14-12-3, 31-16-12-1, 3, 6

5. Preparing your File for Contempt • Administrative Enforcement • Administrative Hearings • Non-Payment Letter • Collection Call • Vehicle Lien • License Suspension

6. Preparing your File for Contempt • Florida- Administrative Enforcement is taken by Florida Department of Revenue (DOR) • There is no mechanism for admin hearing on non-payment (only for bank levy, license suspension)

7. Screening Your Case Before Filing • Per AT-12-01 from OCSE (based on Turner) • Each case should be reviewed individually • Individual review shall examine the actual and present ability to comply- is this realistic?

8. Documenting for Attorney in Court • Caseworkers to create an enforcement checklist of all steps prior to filing for contempt. • Document all communication with the NCP. • Document all enforcement steps with the NCP. • Prep the attorneys for court by reviewing the enforcement checklist.

9. Documenting for Attorney in Court • Florida- The DOR prepares the file and pleadings prior to the referral to the legal services provider.

10. Filing the Information • Streamlined forms that comply with your local rules. Do they provide the obligor with notice the “Ability to Pay” is a critical issue? • Accurate arrearage calculations. • Confirm the support order is correct. • Confirm the arrears are correct.

11. Post Turner Safe-Guards • Make sure the Court has a clean record. • Right to Counsel • 6th Amendment of Constitution/Art. 1 § 13 of the Indiana Constitution. • Occurs in a civil matter where liberty is at risk • Notify NCP of right to have an attorney. • Marks v. Tolliver, 839 NE2d 703, 2005 Ind. App. • Has NCP made reasonable efforts to secure counsel before the hearing date?

12. Post Turner Safe-Guards • Right to Public Defender • Notify NCP of right to have attorney provided if he cannot afford one.

13. Post Turner Safe-Guards • Florida- NCP has no right to public defender • Bowen case sets forth safe-guards for civil contempt. Florida Family Law Rule of Procedure 12.615. • Notice for hearing must contain language stating that failure of the NCP to appear may result in the issuance of an arrest order and being held for up to 48 hours. Within 48 hours a hearing must be held to determine present ability to purge the contempt.

14. Court Inquiry for Public Defender • Court will have questions to justify appointing PD. • Attorneys to note questions and answers for useful information. • Is NCP working? Does NCP have property of value? Who is NCP living with? How is NCP paying rent? • Attorney use the answers against NCP during Contempt Hearing.

15. Information for the Court • Attorney for the State presentation to the Court. • Prior order for support was entered. • The Amount of the Arrearage. • The amount of the support order. • The number of children it is for. • The last payment. • The pattern of payments.

16. Rule to Show Cause Hearing • Typical Questions • Did NCP know about the order? • Make sure you know from your file if he did or not and when he knew. Not knowing is a valid defense. • Are you employed? • Caseworkers to have any relevant employment information for attorney. • Has NCP ever admitted in Court or to our office that he is working?

17. Asset Inquiry • Florida- asset inquires do not occur until after the Court has found contempt- opposite of majority of states where asset/ability to pay is key to the finding of contempt.

18. Odd jobs, cash, tips? • Do you do any odd jobs, have cash income? • CP may have provided information of this. • NCP may have told our office about this. • Do you make any tip income at work? • Why isn’t NCP supplementing meager IWO with tip income? • What is NCP doing with the cash if not paying support.

19. Assets and Household expenses • Cars, homes, anything of value? • BMV check before the hearing. • Game Systems, TVs, Money that could have been used for CSUP. • Ongoing payments- jewelry, etc. • Check if there was a recent request for passport. This could indicate a job or a vacation or honeymoon (did he buy an engagement ring?) • Recently sold a home or property?

20. Who lives in NCP’s household? • Is NCP paying rent? If no, also money that could go to CSUP. • Is anyone paying rent to live with him? • Is someone taking care of all NCP’s needs?

21. Why aren’t you paying your child support? • Yes this question is open-ended and you never know what sort of answer you will get. • In my experience whatever answer the NCP gives is rarely good for his defense. • Typical answers: No parenting time, his household, his own bills, his girlfriends bills, his girlfriends kids, in other words all things that shouldn’t be prioritized over this child. • The Court usually hates these answers.

22. School, Job Searches • What is your plan going forward? • School? How is NCP paying for it? • Loans or grants? Is there additional lump sum that could be paid for CSUP. • If they did get an extra amount, why didn’t they pay anything on CSUP. • When do they get their next payment? How much can they pay from it? • Have you looked for work? • Proof of job searches? Have they been to unemployment office?

23. What Do You Need to Prove? • Did the payor know about the Order? • State’s burden to prove • Did they fail to pay? • State’s burden to prove usually by certified pay records or testimony • Can they pay? • Payor’s burden to prove.

24. Defenses to Contempt • Attack the Prima Facia case • No jurisdiction- • Indiana trial courts have general jurisdiction which means jurisdiction does not have to be alleged in the complaint • Once issue is raised, burden shifts to State to prove jurisdication. • Must be asserted at earliest opportunity.

25. No notice- Pennoyer v Neff 95 US 714 (1877). • Payor must have notice and opportunity to be heard, but this defense can be waived if not raised at the earliest opportunity. • No specific notice of issues alleged in contempt. • Pleading have to allege specifically: did not pay child support, did not pay medical bills, etc. • Emery v. Sauttner, 788 NE2d 856, 2003 Ind App. • I.C. 34-47-3-5

26. Explain/Excuse why the Payor did not comply. • Payor must present evidence • Physically unable, SSI, limited resources, incarceration, mistaken identity, ambigouos order, coming out of my check by my employer not paying it • NOT RELEVANT: visitation, attack or underlying order, request for DNA • Shillitano v. US 384 US 364 (1966).

27. Argument for Contempt • If your Court allows it, argue why you believe NCP should be found in contempt. • Knew about the Order • Didn’t pay when able to do so • No defense that justifies non-payment • Anecdote or statement of NCP’s you can use against him. • Contempt is to “coerce” payments not punish.

28. Argument for Contempt • Florida- Must demonstrate that during the period of non-payment, the NCP had the ability to pay but failed to make payment, It is NCP’s burden to dispel the presumption created by the original order. • Once contempt found, must demonstrate that NCP has present ability to pay purge.

29. Alternative Sentencing Ideas • Community Service (Pettit v. Pettit, 626 NE2d 444, 1993 Ind.) (I.C. 31-14-12-3, 31-16-12-6) • Have a list of pre-screened providers. • Provision in sentence for NCP to do the hours each week or make full payment plus $5.00 on arrears. • Require he obtain proof from provider that he did the hours. Contact provider to confirm. • Follow up hearing to prove he did the hours or paid.

30. Employment Programs • Child Support Improvement Plan – Ours is through the Unemployment Office. • Resume Prep and Review • Job Skills workshops • Computer basics, Interviewing, cover letters, identifying skills, work readiness. • Referrals for GED classes or skilled training. • Online job searches at Unemployment Office or anywhere with internet. • NCPEP

31. Employment Programs • Non Custodial Parent Employment Project (NCPEP)- regional in Florida

32. Job Search Requirement • Court to order 30 job applications in 30 days. • Create a tracking sheet for the Court to use. • Follow up hearing for NCP to show proof. • Contact the employers to make sure NCP isn’t lying. • 30 job apps or interview every 30 days = diligent search (Florida)- must provide proof every 30 days

33. Other Ideas • Transfer of property so long as its value does not exceed what is owed. (Thompson v. Thompson, 811 N.E.2d 888, 2004 Ind. App.) • “till tap”- how much money do you have in your pocket right now?

34. Follow up Hearing • Cover with NCP every court ordered sentencing alternative in open court. • Have they paid at all? • Did they do all community service hours? • Did they do your Employment Program as ordered? • Did they fill out 30 applications?

35. Sentenced to Jail • Purge Amount (Pay or Stay) • In Indiana any amount up to the full arrearage is allowable. • In practice reasonable bonds work better. • Willingness to negotiate reduced bond if NCP is able to come up with some portion of bond. • Do you have work release available? • Weekends

36. Sentenced to Jail • How much time? In Indiana- • In Indiana until 1987, civil contempt could only be 3 months and/or $500.00 fine. • Now- “reasonable”- Jones v. State 847, NE2d 190, 2006 Ind. App. • What does your State do?

37. Sentenced to Jail • Florida- NCP appears for hearing: • Court can set a purge based on present ability to pay and the order must contain the factual basis • The purge can be immediate or deferred to allow compliance, if he does not comply a certified copy of the pay history and writ of bodily attachment are filed.

38. Sentenced to Jail • Florida- NCP FAILS to appear for hearing: • NCP is presumed to have the ability to comply with the original order. • The Court can find contempt based on the presumption and issue a writ with a reasonable purge. • Upon arrest- 48 hours for hearing to determine present ability to pay. • NCP can be incarcerated up to5 months and 29 days

39. Debtor’s Prison? • Debtor’s prison is prohibited except in child support. • Child support is considered to be an obligation from nature and not from contract. • Mosser v. Mosser, 729 NE2d 197, 2000 Ind. App.

40. Court can sentence to jail (if purge amount) and fine (usually in the form of attorney fees). Adler v. Adler, 713 NE2d 348, 199 Ind. App., Mosser v. Mosser.

41. Suspended Sentences • Immediate Execution Requests • Upon showing that as little as one payment is missed the Court will issue a writ of attachment for immediate execution of the sentence. • File a certified copy of the payment history along with Motion and proposed Writ of Attachment. • Upon arrest, limited hearing to give Court any reason they should not serve the sentence.

42. Bond Reduction • The goal is to collect, be willing to reduce bonds if appropriate. • Consider time already served, how quickly did they come up with a reduced amount, how reasonable is the existing bond. • Process for quick review with the Court. • Remember it is your case, maybe CP wants NCP to sit in jail but is that really in the best interest of the case?

43. Post Emancipation Contempt • In Indiana contempt or as least jail time is prohibited. • Contempt is an extraordinary remedy. • Constitutional issues. • Seems at odds with the statutory authority. • I.C. 31-14-12-3, 31-16-12-6 • Corbridge v. Corbridge, 230 Ind, 201 (1952 Ind.)

44. Post Emancipation Contempt • In the Majority of States however, Contempt is allowed. • Emancipation doesn’t alter the idea that child support obligation stems from nature. • Prevents payor from avoidance until emancipations.

45. Can Arrears Be Reduced to Judgment? • In most States, yes, the purpose of the debt remains the same regardless of form. • Ongoing moral obligation. • Pettit v. Pettit, 626 NE2d 444 (1993 Ind.). • Prior to Pettit case in 1993, if a child support obligation was reduced to judgment, contempt was not an option.

46. What to do next? • Start over at the beginning or go straight to Contempt the next time? • Depends on the results and history of the case. • If they paid the bond or a reasonable reduced bond very quickly, recommend going right back to Contempt. • If they obtain employment and pay regularly consider starting over the next time payments stop. • Florida- DOR determines.

47. Valid Defenses/Possible Mod? • If NCP had a valid defense to non-payment consider if CSUP amount should be modified. • Disability determination • True inability to work by Doctor but no disability yet. • Parties living together and no TANF benefits.

48. Helpful Documents • Employment Verifications • Quarterly Financial Data • Bank Statements • BMV Vehicle report • Payment Histories • Arrearage Calculations • Proof of any lump sum income.