Saturday, April 18, 2009

Contempt and Collecting Child Support in Indiana

First, it is clear that indirect contempt proceedings may be used to enforce child support obligations. See Marks v. Tolliver, 839 N.E.2d 703, 706 (Ind. Ct. App. 2005). Indirect contempt is something that happens outside of the court and direct is what happens in the presence of the court.

Due process applies to contempt. That means there has to be notice and a hearing before imposing any penalty. See In re Paternity of J.T.I., 875 N.E.2d 447, 450 (Ind. Ct. App. 2007).

Indiana Code Section 34-47-3-5 incorporates these due process protections. No rule to show cause complying with this statute means a court generally cannot hold a person in indirect contempt.

So what are the exceptions to strict compliance? Yes. If it is clear the alleged contemnor nevertheless had clear notice of the accusations against him or her, this acts as an exception. See In re Paternity of J.T.I. In J.T.I the Court of Appeals gives the example of person having a copy of an original contempt information that contained detailed factual allegations, or of a person appearing at the contempt hearing and admitting to the factual basis for a contempt finding.

Here is something I think some courts overlook: a court cannot hold a parent in contempt for failing to pay child support unless the parent had the ability to pay and the failure to do so was willful. See Marks, 839 N.E.2d at 706. If the courts do not overlook this requirement, I think they do not take a liberal view of one's inability to pay.

Remember the ultimate penalty for contempt is incarceration. Several rules apply before one can be incarcerated:

  1. A person must be first be advised of their constitutional right to counsel. Marks, 839 N.E.2d at 706.
  2. If a person is indigent and in jeopardy of incarceration because of a contempt proceeding and that person is indigent, the court must appoint counsel. Marks, 839 N.E.2d at 706.
  3. A jail sentence for civil contempt must be coercive or remedial rather than punitive in nature. K.L.N. v. State, 881 N.E.2d 39, 42 (Ind. Ct. App. 2008). Which means a contempt order must offer an opportunity for the recalcitrant party to purge himself or herself of the contempt by being given an opportunity to paying the amount owed. Marks, 839 N.E.2d at 707.
  4. Incarceration for contempt is legally allowable only where the support order upon which release is conditioned is attainable by the obligor.
In Marks, the court of Appeals made this observations about the trial court's Order regarding point 4:
Here, the trial court has fashioned an order that provides for prospective incarceration upon omission of any future child support installment without inquiry into the obligor’s ability to pay. In essence, the order presumes willful non-compliance. This contravenes our
Supreme Court’s directive in Pettit. As such, it must be reversed.

Marks relied upon Branum v. State, 829 N.E.2d 622 (2005) which has this to say on the subject of conditions for release:
Branum next contends that the trial court erred when it did not condition his release from jail on compliance with the child support order. The State maintains that the lack of such a provision is not grounds for reversal...

...The trial court did not include an express provision whereby Branum’s release was conditioned upon his compliance with the child support order....
This and IC 34-47-4-2(b)(2(B) explain why the courts have taken to tacking on what is called a bond for release on a contempt order. However, it is not actually a bond as in a criminal case and so nothing a bondsman can help with.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.


Anonymous said...

Not a penny under duress. Let the system collapse under its own weight.

Sam Hasler said...

Which comment is why they came up with the phrase "deadbeat parent".

Anonymous said...

Do you have any more information on this topic?