Cornell
Journal of Law
and Public Policy

Volume 18

Fall 2008

Number 1

CIVIL CONTEMPT AND THE INDIGENT
CHILD SUPPORT OBLIGOR: THE SILENT
RETURN OF DEBTOR'S PRISON

ELIZABETH G. PATTERSON

Copyright CO 2009 by Cornell University

Electronic copy available at: http://ssrn.com/abstract=1558600

Electronic copy available at: http://ssrn.com/abstract=1558600

CIVIL CONTEMPT AND THE INDIGENT CHILD
SUPPORT OBLIGOR: THE SILENT RETURN
OF DEBTOR'S PRISON
Elizabeth G. Patterson*
Each day in the United States thousands of persons are jailed on
charges arisingfromfailure to pay court-ordered child support. Some of
them have been convicted of contempt of court, a crime based on willful
defiance of the court order. However, most are incarcerated pursuant to
the court's civil authority to jail contemnors as a means of coercing compliance with the order. In the case of the civil contemnor, confinement
generally occurs without the procedural protections that are available as
a matter of right in criminal proceedings. A finding of ability to pay the
ordered support is a necessary precedent to both a finding of contempt
and the penalty of coercive incarceration. Otherwise, the incarceration
can only be characterized as punishment for being poor. Yet many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability
to pay. A variety of systemic and judicial flaws have coalesced to create
a fertile environment for unjustified incarcerations. Prominent among
these are serious deficiencies in current civil contempt practice. Restoration of equity and due process to this area will require an array of
adjustments in federal and state law, agency practice, and judicial
process.
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I.

PROGRAM..............................................

II.

III.

96

THE FEDERAL/STATE CHILD SUPPORT ENFORCEMENT
THE CONTEMPT POWER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

98
101

ABILITY TO PAY, ARREARAGES, AND THE INDIGENT
OBLIGOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

105

Accrual of Large Arrearages by Indigents. . . . . . . . . ..
Problems in the Setting of Child Support Amounts for
Indigents
1. Inadequate Information. . . . . . . . . . . . . . . . . . . . . . . ..
2. Imputed Income. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
3. Minimum Awards..........

105

A.
B.

107
107
108
109

* Professor, University of South Carolina School of Law. Professor Patterson was Director of the South Carolina Department of Social Services from 1999 through 2003.
95

96

CORNELL JOURNAL OF LAW AND PUBLIC POLICY

C.
IV.

Extent of Incarceration of Indigents . . . . . . . . . . . . . . . ..
The Heavy Burden of Proving Inability to Pay. . . . . ..
The Role of Judicial Perceptions and
Attitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Social Effects
. . . . . . . . . . . . . . . . . . . . . . ..
Due Process Violations.. . . . . . . . . . . . . . . . . . . . . . . . . . ..

VIII.

,

AVOIDING ARREARAGES: SYSTEMIC CORRECTIONS........

121
126
126
127
130
131

AVOIDING CONTE:\1PT CHARGES: INTERVENTION AND
COMPROMISE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

A.
B.
IX.

112
115
116
119

SUPPORTING CHILDREN VS. PUNISHING POVERTY: RECALIBRATING THE SySTEM

VII.

110
111

IMPLICATIONS OF IMPROPER CONFINEMENT....... ..

A.
B.

VI.

4. Retroactive Awards....
5. Non-Traditional Wage Trajectories........ . .
Limitations on Modification of Support
Awards..............
.

ARREARAGES AND CIVIL CONTEMPT.......

A.
B.
C.
V.

lVoI. 18:95

Diversion of Contempt Cases. . . . . . . .. . . . . . . . . . .. ...
Bradley Amendment/Forgiveness (~f Federal Share...

132
132
132

AVOIDING IMPRISONMENT: JUSTICE IN CONTEMPT
PROCEEDINGS

A.
B.
C.
D.
E.

Judicial Education
Burden of Proof
"
Standard of Appellate Review. . . . . . . . . . . . . . . . . . . . . ..
Assessing Obligor's Credibility
Representation by Counsel. . . . . . . . . . . . . . . . . . . . . . . . ..

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

133
133
134
135
136
138
140

INTRODUCTION

Since becoming the subject of federal legislation in the 1980' s, the
obligation of absent parents to support their children has assumed a reality that was previously lacking. From 1975 through 2006, more than
$286 billion in child support was collected and distributed to families. I
Federal legislation generated these results by providing states with the
monetary resources and legal tools that encouraged and enabled them to
identify and locate absent parents and force those parents to provide financial support for their children. These tools ranged from the coercive
power of driver's license revocations to the more direct authority to seize
wages, tax refunds, and other liquid assets. The ultimate enforcement
I

OFFICE Or CHILD SUPPORT ENFORCEMENT, CHILD SUPPORT ENFORCFMFNT

2 (2007), jhercinafter OCSE 2006 PRELIMINARY
www.acf.hhs.govIprogramslcse/pubs/2007/preliminary_report.

PRELIMINARY REPORT

RFPORT],

FY 2()(16

availl/ble

1/[

20081 CIVIL

CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR

97

tool for collecting child support, like any judicially ordered obligation, is
imprisonment for contempt of the court's order.
This ultimate sanction is increasingly becoming a routine part of
child support enforcement practice. 2 The widespread use of the contempt sanction derives from the huge amount of outstanding unpaid child
support and the large number of obligors who are in arrears on their
payments. When other enforcement mechanisms fail to produce the
monies owed, states often turn to contempt sanctions in order to punish
the non-paying parent, to coerce payment, or both.
When applied to those who are willfully refusing to pay though able
to do so, use of the contempt sanction to punish or coerce the recalcitrant
parent is an appropriate means of assuring that absent parents take financial responsibility for the children they have brought into the world.
However, there is reason to believe that contempt is commonly used in
cases involving low-income obligors whose nonpayment may result as
much from inability to pay as from willful refusal.
Incarceration of indigent obligors for nonpayment of child support
represents a serious failure of the system. It is a social failure because it
does little to generate child support payments, and it increases the economic marginalization of the persons whose economic success is critical
to achieving the goals of the program. Use of contempt in these situations also drives wedges between family members whose cooperation
could significantly contribute to the child's well being. Furthermore, for
the large number of indigent fathers who flee to the "underground economy" to avoid their inevitable return to prison, contempt sanctions permanently remove them-usually both socially and economically-from
the child's life.
The legal failure represented by incarceration of indigent parents for
contempt is-if possible-even greater than the social and economic
failure. Criminal contempt is supposed to be a punishment for willful
misbehavior, not for an absence of funds. 3 Civil contempt is supposed to
be used to coerce a person to do something that he is able, but unwilling,
to do. 4 In either case, if the contemnor's failure to pay the sums ordered
by the court is simply a result of inability to pay, his incarceration can
only be characterized as imprisonment for being poor. s The failure of
See infra notes 152-65 and accompanying text.
See United States v. Bryan. 339 U.S. 323. 329 (1950) ("Ordinarily, one charged with
contempt of court for failure to comply with a court order makes a complete defense by proving that he is unable to comply.").
4 See McNeil v. Director. Patuxent Inst.. 407 U.S. 245. 251 (1972) (rejecting coercive
confinement on a civil contempt theory where individual lacks ability to comply).
5 See In re Warner, 905 A.2d 233, 243-44 (D.C. 2006) (Schweib. 5.1.. concurring)
(warning that unrestrained use of the contempt power in child support cases "present[s] a
significant risk that a non-custodial parent will face imprisonment on accollnt of poverty").
2

3

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[Vol. 18:95

the legal system is magnifIed in the context of civil contempt because the
contemnor does not have the rights in these proceedings that are guaranteed to criminal defendants, induding, in many states, the right to
counsel.
This Article will examine the forces that have led to this new form
of "debtor's prison," with particular focus on the law of contempt. Initially, it will describe the "super-collection agency" approach to child
support enforcement mandated by federal law. It will then look at the
courts' power to imprison persons for contempt of court, which is the
ultimate sanction in the child support enforcement system. The critical
importance of establishing the obligor's ability to pay the ordered support before penalizing him or her for contempt will be highlighted. The
third section of this Article will examine how the child support enforcement system, as currently structured, creates a large pool of indigent obligors with large child support arrearages that they are unable to pay, and
presents evidence that large numbers of these persons are being incarcerated for contempt despite their inability to pay. The fourth section of this
Article examines phenomena that underlie this improper use of the contempt power, concluding that procedural hurdles in proving inability to
pay and abuse of judicial authority are key causes. Finally, the fifth and
sixth sections discuss the social and legal implications of improper confinement of indigent child support obligors, and make suggestions for
correcting flaws in the administrative and judicial systems that have led
to the current high rate of unwarranted confinement of indigent child
support obligors.
I.

THE FEDERAL/STATE CHILD SUPPORT ENFORCEMENT PROGRAM

Direct federal involvement in child support enforcement originally
was an outgrowth of the welfare program, and its initial effect was limited to families receiving assistance from this program. 6 Congressional
6 Federal involvement in child support enforcement began in 1965 with legislation providing state and local welfare agencies with access to certain federally held information that
would help them locate delinquent child support obligors. Social Security Amendments of
1965, Pub. L. No.89-97, §340, 79 Stat. 286,41 I (1965) (codified as amended at 42 U.S.c.
§§ 301, 405, 1306). At that time, enforcement of a parent's obligation to support his or her
child, like other aspects of family law, was regarded as a matter almost exclusively within the
jurisdiction of the states, and the federal initiative was merely supportive of the states' efforts.
E.g., United States v. Yazell, 382 U.S. 341, 352 (1966). Over the years, however, Congress
repeatedly amended or supplemented its child support enforcement laws, each time imposing
more requirements on the states and reducing the states' flexibility to define the substantive
and procedural parameters of child support law. Eventually, in the Family Support Act of
1988 (FSA-88), Pub .L. No. 100-485, 102 Stat. 2343 (1988) (codified at various sections of 42
U.S.C.), and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
(PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified at various sections of 42
U.S.C), Congress established a broad range of substantive and procedural mandates as condi-

2008] CIVIL

CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR 99

reform of the welfare program in the 1980' s focused on two primary
techniques for reducing spiraling welfare costs and welfare recipients'
economic dependence on government. The first technique was putting
the welfare recipient to work. 7 The second was obtaining support for the
recipient's children from absent parents. 8 Between them, earned income
and child support were expected to create sufficient household income so
that many single parents-the primary welfare population-would no
longer require welfare subsidies. 9
Child support payments on behalf of children supported by the welfare program also were seen as a means for repaying the state and federal
governments for welfare benefits received by the payor's family. 10 Thus,
collections received on behalf of children for whom TANF benefits were
being or (in the case of arrearages) had been paid were to be divided
between the state and federal governments. I I Only when support payments exceeded this debt to the government would the custodial parenti
welfare recipient receive any portion of the funds. 12 Almost half the national child support debt is owed not to custodial parents, but to the
government. 13
In fashioning the child support enforcement program, the federal
focus was on creating a relentlessly effective system for collecting as
much accrued child support debt as possible from absent parents. 14 The
federal requirements address every aspect of the process of identifying
and locating absent parents, and establishing and enforcing the support
obligation. Welfare eligibility is conditioned on identification of the fations for the receipt of federal funds. See Paul K. Legler, The Coming Revolution in Child
Support Policy: Implications of the 1996 Welfare Act, 30 FAM. L. Q. 519, 531-35 (1996).
7 See Legler, supra note 6, at 525 n.30.
8 See id. at 521.
9 See id. at 523 n.23, 525 n.30.
10 Id. at 521-22.
II See 42 U.S.c. § 657 (2000).
12 This is a simplified rendering of the distribution formula, which varies depending on
the source of the funds (e.g., funds obtained by tax intercept are treated differently from other
funds), whether they are applicable to current support or to arrears, and whether the custodial
parent is a welfare recipient at the time the payment is received. See Id. In addition, states
have the option of passing the state share through to the custodial parent. E.g., id. § 657(a)(I);
JAN JUSTICE, CTR. FOR LAW & Soc. POL'y, STATE POLICY REGARDING PAss-THROUGH AND
DISREGARD OF CURRENT MONTH'S CHILD SUPPORT COLLECTED FOR FAMILIES RECEIVING
TANF-FUNDED CASH ASSISTANCE (2007), available at www.clasp.org/publications/pass_
through_2oo7juneOl.pdf; see also OFFICE OF CHILD SUPPORT ENFORCEMENT, AT-07-05, AcTION TRANSMITTAL (2007), available at www.acf.hhs.gov/programs/cse/poIlATl2oo7/at-0705.htm (noting expansion of pass-through options, authorized by Deficit Reduction Act of
2005).
13 REBECCA MAY & MARGUERITE ROULET, CTR. FOR FAMILY POL'y & PRAC., A LOOK
AT ARRESTS OF Low-INCOME FATHERS FOR CHILD SUPPORT NONPAYMENT: ENFORCEMENT,
COURT AND PROGRAM PRACTICES 10 (2005), available at http://www.cffpp.org/publicationsl
pdfs/noncompliance.pdf.
14 See 42 U.S.C. §§ 654, 666 (2000)

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ther (in the case of female applicants) and cooperation with efforts to
obtain support from the absent parent. 15 Judicial proceedings for determining paternity and ordering payment of child support have been replaced with administrative proceedings. 16 Consistency and accuracy of
these determinations are to be assured by reliance on genetic testing to
establish paternityl7 and the use of child support guidelines that apply a
mathematical formula to calculate the amount of the support award. 18
Once the order is in place, collection of the required support is facilitated through a broad array of mechanisms created or mandated by federal law. A vast network of automated systems provides the child
support agency with information on obligors' bank accounts, tax filings,
and assets, as well as means for effecting automated seizures of certain
assets, including tax refunds. 19 Wage withholding is mandatory in all
cases where child support enforcement is being handled by the agency.20
Employers can be identified through interlinked automated state and national "new hire" directories, to which employers must report information on each newly hired employee. 21
If insufficient funds are obtained through wage withholding and
seizure of assets, a variety of coercive mechanisms are available to try to
induce payment by the obligor. These include the revocation of occupational,22 driver's,23 and other licenses;24 the denial of passports;25 and
reporting of delinquent obligors to consumer reporting agencies. 26
The federal statute also provides for interstate cooperation in enforcement efforts and creates state and federal "Parent Locate" systems
with access to records of departments of corrections, employment security commissions, utility companies, the postal service, the military, and
other entities with extensive records on members of the public. 27
An excellent description of the conceptual underpinnings for federal
child support law can be found in an article written by Paul K. Legler, an
attorney for the Department of Health and Human Services (HHS) who
IS {d. § 608(a)(2).
16

{d.

17

{d. § 666(a)(5)(B).
{d. § 656(a)(2)(B).
{d. § 664.
{d. § 666(a)(1 )(B).
{d. § 653a(b)(1 )(A).
{d. § 666(a)(16).
{d.
{d.

18
19

20

21
22
23
24
25

26

27

{d. § 652(k)(2).
{d. § 666(a)(7).
{d. § 653.

2008]C!VIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR101

was involved in developing the federal legislation.28 According to
Legler, the federal model was based on the premise "that the payment of
child support should be automatic and inescapable-'like death or
taxes.' "29 In order to implement this vision, judicial discretion-the prevailing model in most states for determining paternity as well as setting
and enforcing support-was to be replaced by expedited administrative
proceedings and mass processing of enforcement activities. 30 "[A]ny delay or failure to make payment should automatically trigger these enforcement actions";3l there was no opportunity to make excuses, and no
opportunity was necessary since there were no acceptable excuses for
nonpayment of support. 32
This super-collection agency approach to child support enforcement
demanded that all available tools be used to extract support payments
from recalcitrant parents. When even the vast array of enforcement tools
created under the federal legislation failed to bring about payment of
child support arrearages, states turned to a mechanism as old as the common law-the judicial power to imprison those in contempt of an order
of the court.
II.

THE CONTEMPT POWER

Since the twelfth century33 courts have claimed inherent authority to
protect the integrity of their proceedings and ensure compliance with
their lawful orders by holding offending parties in contempt of court. 34
28 Legler, supra note 6. Paul Legler was, at that time. Attorney Advisor to HHS' Assistant Secretary for Planning and Evaluation.
29 [d. at 538 & n.93 (quoting Paul K. Legler & David T. Ellwood, Collecting Fair Support for Children: Getting and Collecting Child Support Obligations (Feb. 1993) (unpublished
report».
30 See id. at 551-54.
3l Id. at 553.
32 It was recognized that there could be exceptional cases, for which the federal model
was not appropriate. and it was said that states could maintain limited court-based processes
for the collection of support to the extent necessary for these exceptional cases. Id. at 552-53.
The exceptional cases that the drafters of the statute had in mind apparently were the cases
handled by private divorce attorneys outside the IV-D system, id. at 553, and cases involving
obligors who are self-employed or underground and require additional tracking and processing
mechanisms beyond those in the mass processing system. [d. at 554 n.I72.
33 Philip A. Hostak, Note, Int'! Union, United Mine Workers v. Bagwell: A Paradigm
Shift in the Distinction Between Civil and Criminal Contempt, 81 CORNELL L. REV. 181
(1995). This power was originally assumed by the royal courts acting under the authority of
the monarch.
34 lnt'! Union, United Mine Workers v. Bagwell, 512 U.S. 821, 831 (1994); Earl C.
Dudley, Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation
of Indirect Cantempts, 79 VA. L. REv. 1025, 1070-72 (1993). Contempt of court "is disobedience of an order of a court or conduct which brings the administration of justice into disrespect
or which tends to embarrass, impede or obstruct a court in the performance of its functions."
In re Contempt of Morris, 674 N.E.2d 761,764 (Ohio Ct. App. 1996).

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For most of its history, this authority extended to any conduct regarded
by the court as contemptuous of its authority, including but not limited to
disruption of its proceedings, disobedience of its orders, and criticism of
the court or its decisions, The court had exclusive authority to define
both the offense and its sanction without appellate oversight,35 and there
is at least one recorded case in which contempt of court was punished by
execution. 36
This untrammeled contempt power was among the many aspects of
the English common law that was received into the law of the independent American states. 37 It has been only gradually, as conflicts with
evolving constitutional values have become apparent, that some of the
most egregious aspects of contempt doctrine have been abandoned. For
instance, use of the contempt power to silence criticism of the courts and
government officials was gradually curtailed, beginning with statutes in
the early 1800' S3S and culminating in the Supreme Court decision in
Craig v. Harney in 1947,39 In 1887 the Supreme Court began asserting
the power of appellate review of contempt judgments. 4o Then in 1911,
concern about the history of and potential for abuse of the contempt
power ledthe Court to begin a process of limiting courts' unfettered discretion to impose contempt sanctions. 41
The mechanism used by the Court to introduce constitutional constraints into contempt proceedings was to characterize certain contempts-those that were punitive in nature-as criminal, and hence
subject to the substantial procedural constraints imposed on criminal proceedings by the Due Process Clause,42 Contempt proceedings characterized as remedial rather than punitive were considered civil in nature, and
thus outside the reach of constitutional constraints on criminal proceedings. Civil contempt sanctions are considered remedial because they are
imposed to coerce compliance with a court's order, not to punish disobe35 "Blackstone stated that 'the sole adjudication of contempts, and the punishment
thereof ... belongs exclusively. and without interfering, to each respective Court.''' Dudley,
supra note 34, at 11134 n.30 (quoting Case of Brass Crosby, (1771) 95 Eng. Rep. 1005, 1014
(K.B.».
36 See RONALD L. GOLDFARB, THE CONTEMPT POWER 15 (1963).
37 Id. at 10.
38 Id. at 19-22.
39

Craig v. Harney, 331 U.S. 367 (1947).

40 See Worden v. Searls, 121 U.S. 14 (1887); see also Alexander v. United States, 201
U.S. 117. 121 (1906); Bessette v. W.B. Conkey Co., 194 U.S. 324 (1904); In re Christensen
Eng'g Co., 194 U.S. 458 (1904),
41 See Gompers v. Buck's Stove & Range Co., 221 U.S. 418 (1911).
42 Dudley, sl/pra note 34, at 1033-47 (discussing the civil-criminal distinction as a
means for the courts to assert appellate review of some exercises of the contempt power,
Ihercforc bringing constitutional constraints to bear on these proceedings).

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR103

dience of it. Although imprisonment may be imposed,43 the civil contemnor can secure his release at any time by complying with the order. 44
Hence, it is said that he "'carries the keys of his prison in his own
pocket.' "45 Criminal contempt, on the other hand, is sanctioned in the
same manner as any other criminal offense-by imprisonment for a definite duration, avoidable only through the normal processes of probation
or parole. 46
The civil contemnor's ability to avoid sanction has been thought to
give civil contempt proceedings diminished due process significance.
Hence, the Supreme Court has held that these proceedings are not subject
to the array of constitutional protections accorded to criminal contemnors
and other criminal defendants. 47 The presumption of innocence,48 the
state's burden of proof,49 and the requirement of proof beyond a reasonable doubt50 do not apply in civil contempt proceedings. Indictment and
jury trial are not mandated. 51 Nor does the civil contemnor possess the
privilege against self-incrimination,52 right to counsel,53 or protection
against double jeopardy.54 Civil contempt sanctions may be imposed using only the most rudimentary elements of due process-notice of the
charge and an opportunity to be heard. 55 Contempts that are classified as
civil thus remain largely the domain of the individual judge.
Arguments have been advanced for more stringent constitutional
limits on judicial discretion in imposing coercive contempt sanctions.56
And indeed, the Supreme Court has taken a step in this direction by classifying as criminal the imposition of "coercive" fines for recurrent viola43 This Article focuses on imprisonment, the contempt sanction generally used in child
support proceedings. However, contempt sanctions can also take other forms, notably fines.
See, e.g., Int'I Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994); United States v.
United Mine Workers, 330 U.S. 258 (1947).
44 Shillitani v. United States, 384 U.S. 364, 370 (1966).
45 Gompers, 221 U.S. at 442.
46 See id.; see also Shillitani, 384 U.S. at 370 n.5. ("A criminal contempt proceeding
would be characterized by the imposition of an unconditional sentence for punishment or
deterrence.").
47 See discussion supra notes 42-46 and accompanying text.
48 Gompers, 221 U.S. at 444.
49 Hicks v. Feiock, 485 U.S. 624 (1988).
50 Id. at 632; Int'I Union, United Mine Workers v. Bagwell, 512 U.S. 821, 826 (1994).
51 Shillitani, 384 U.S. at 370-71; Bagwell, 512 U.S. at 826-27.
52 Gompers, 221 U.S. at 444; Bagwell, 512 U.S. at 826.
53 Bagwell, 512 U.S. at 826.
54/d.
55 Id. at 827. Some states have expanded the procedural protections in civil contempt
beyond those required by the Supreme Court; most importantly, several have recognized a
right to counsel for indigent civil contemnors. See, e.g., State ex reI. Miller v. Grady, No. 031799,2005 WL 839409, at *5-7 (Iowa App. April 13,2005); Mead v. Batchlor, 460 N.W.2d
493, 497 (Mich. 1990); Walters v. Murphy, No. 04-COA-044, 2004 WL 2757598, at *2-3
(Ohio Ct. App. Dec. 2, 2004).
56 See Dudley, supra note 34, at 1062-96.

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tions of complex labor injunctions. 57 Although the opinion in that case
addressed broad principles that could apply to any indirect civil contempt
involving difficult fact issues,58 the Court stopped short of extending its
holding beyond the context of labor injunctions. Therefore, the civilcriminal distinction remains intact outside this area.
Though the two categories of contempt are not always easy to distinguish,59 courts have come to focus on the opportunity to purge the
contempt as the critical factor. 6o If the contemnor has the option of ending his incarceration by compliance with an affirmative command of the
court, then the sanction is regarded as civil. 61
To the extent that the opportunity to purge is what distinguishes
civil from criminal contempt, the reality of this opportunity is of critical
importance in justifying the use of civil procedures. It is not sufficient
that the purge option appear on the face of the contempt order; it must
actually be possible for the contemnor to meet the purge condition and
thus escape confinement. Otherwise, it is sophistic to categorize the
sanction as avoidable and hence a deprivation insufficient to demand
heightened due process protections against error and abuse of authority.
Consequently, it has repeatedly been held that coercive imprisonment
may not be imposed as a sanction for civil contempt if the contemnor
lacks the ability, at the time of the contempt hearing, to purge the
contempt. 62
Not only is ability to comply essential to the validity of civil incarceration for contempt, it also is a necessary element for establishing the
offense of contempt itself. The elements of contempt are the same regardless of whether the contempt is to be sanctioned civilly or criminally.
In either case, it must be shown that the individual disobeyed a court
Bagwell, 512 U.S. at 836-38.
at 831-34.
59 See. e.g., Dudley, supra note 34, at 1033.
60 The distinction between civil and criminal contempt traditionally was said to lie in the
purpose and nature of the sanctioll imposed. Gompers v. Buck's Stove & Range Co., 221 U.S.
418.441-42 (1911). In regard to purpose. criminal contempt was identifiable by its motive of
punishing the contemnor for disobedience of a court order. and civil contempt was identifiable
by its remedial intent of coercing obedience to the order. {d. However, most contempt sanctions are motivated by mixed purposes of punishment for a prior offense and coercion of future
obedience. Bagwell, 512 U.S. at 828; Hicks v. Feiock, 485 U.S. 624. 635 (1988). Consequently, the Court has long regarded purpose as an unhelpful basis for the distinction, and has
instead focused more on the nature of the sanction, id. at 636, particularly the opportunity to
purge the contempt.
61 Shillitani v. United States. 384 U.S. 364, 370 (1966). This is true whether the term of
imprisonment absent compliance would be indefinite or fixed. {d.; Bagwell, 512 U.S. at 828.
62 Shillitani, 384 U.S. at 371:; Hicks, 485 U.S. at 638 n.9; see also Young v. Fauth, 158
Md. App. 105, 114 (Md. App. 2004) (holding that purge provision based on contemnor's sale
of memorabilia collection was improper, as sale of collection would take time and as a result
obligor did not have ability to purge at time of contempt hearing).
57

58 {d.

2008]CIvIL

CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR105

order, and that his noncompliance was willful. In other words, he must
have had knowledge of the order and the ability to comply, such that his
noncompliance demonstrates "contempt" of the court. 63 Noncompliance
by one who lacked the ability to comply is not willful and cannot support
a finding of contempt.
III.

A.

ABILITY TO PAY, ARREARAGES, AND THE INDIGENT OBLIGOR

Accrual of Large Arrearages by Indigents

The federal vision of child support enforcement is in many ways a
fair and efficient system for assuring that non-resident parents meet their
financial support obligations. Indeed, as Legler notes, the traditional
court-based system had a long record of inadequate support orders and
toothless enforcement. 64 The problem with the federal child support enforcement legislation is not its overall vision, its desire for efficiency, nor
its creation of massive automated systems to track absent parents and
seize their assets to the extent necessary to satisfy their support obligations. Rather, problems arise from the design and implementation of certain enforcement mechanisms which are ill-suited to the realities of
economic life for many low-income parents.
Congress' assumptions in designing the child support enforcement
statutes were based on studies indicating that most unwed fathers could
pay some financial support for their children, and that their incomes tend
to "rise relatively rapidly" within the few years after paternity is established. 65 However, this model does not reflect the large number of noncustodial parents-particularly in families receiving welfare benefitswho are as poor as the custodial parents and have the same problems
getting and keeping jobs. Welfare program administrators classify certain welfare recipients as "hard to employ" because of characteristics that
make it particularly difficult to find job placements for them. 66 Prominent among these characteristics, or "barriers to employment," are limited education, limited work skills, addictions, criminal records, and
physical and mental health problems. 67 The same barriers to employ63 Cf United States v. Harrison, 188 F.3d 985, 986 (8th Cir. 1999) (stating that "willful"
failure to pay child support under the federal Child Support Recovery Act "requires proof of
an intentional violation of a known legal duty, and thus describes a specific intent crime.").
64 See Legler, supra note 6, at 554.
65 Id. at 527-28 & n.47.
66 See, e.g., PAMELA LOPREST ET AL., URB. INST., TANF POLICIES POR THE HARD TO
EMPLOY: UNDERSTANDING STATE ApPROACHES AND FUTURE DIRECTIONS (2007), available at
http://www.urban.orglUploadedPDF/411501_hard_to_empJoy.pdf; Martha R. Burt, The "Hard
to Serve": Definitions and Implications, in WELPARE REPORM: THE NEXT ACT 163, 169-70
(Alan Weil & Kenneth Finegold eds., 2002).
67 Burt, supra note 66, at 169-70.

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ment are widespread among low-income child-support obligors. 68 Studies have shown that large proportions of poor non-custodial fathers lack a
high-school degree or GEO/'9 have criminal records,70 and suffer from
health conditions that limit the kind or amount of work they can
perform. 71
Furthermore, indigent non-custodial parents lack access to forms of
government assistance available to custodial parents that help address
these barriers. 72 Non-custodial parents are generally ineligible for cash
assistance and employment-related services available from the TANF
program. 73 In addition, they have limited access to Medicaid, food
stamps, and the Earned Income Tax Credit. 74
As a result of these and other factors, employment prospects for
low-income non-custodial fathers are limited. 75 One study found that
fewer than one in five such fathers have full-time, year-round work.7 6 In
1998, low-income non-custodial fathers worked an average of 29.9
weeks per year, with 36 percent working fewer than thirty-five hours per
week. 77 These fathers earned an average of $4,221 annually, compared
to $34.967 annually for !lon-poor non-custodial fathers. 78 As noted by
one researcher, the personal income of these parents "is barely enough to
support themselves, making it difficult to support children living
elsewhere."79
Despite their economic limitations, indigent child support obligors
often end up accumulating thousands of dollars in arrearages, making
them prime candidates for contempt proceedings. Child support obligors
68 ELAINE SORENSEN & CHAVA ZIVMAN. URB. INST., A LOOK AT POOR DADS WHO
DON'T PAY CHILD SUPPORT (2000), available at htlp:llwww.urban.org/UploadedPDF/anCb30.
pdf.
69 !d. at 3; LINDA LEVINE, THE ECONOMIC STATUS 01' NONCUSTODIAL FATHERS OF CHILDREN ON WELFARE 4-5, 13 (2002).
70 LEVINE, supra note 69, at 4-5.
71 !d. at 9, 15: SORENSEN & ZrVMAN, supra note 68, at 2.
72 See id. at 8-9.
73 See id. at 10-12.
74 See id. at 7-14. This study found that, in 1996, less than I percent of poor nonresidential fathers received AFDC cash benefits, 6 percent received food stamps, and 25 percent received Medicaid. !d. at 9. Parents generally received these benefits on account of
subsequently born children who resided in the household with the non-custodial parent. !d. In
1996. flO percent of non-residential fathers were not covered by any form of health insurance.
!d.

75 Research has established that educational attainment and unemployment are inversely
related. See LEVINE, supra note 69, at 7.
76 ELAINE SORENSEN, URBAN INST., OBLIGATING DADS: HELPING Low-INCOME NONCUSTODIAL F.uHERS Do MORE FOR THEIR CHILDREN 4 (1999), available at http://www.urban.org/
publications/309214.html (last visited Mar. 12, 2009).
77 LEVINE. supm note 69, at 15.
7K

!d.

79 SORENSEN,

supra note 76, at 4.

2008]CrVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLlGORI07
owed more than $105 billion in 2006 in 11.1 million child support
cases. so The percentage of non-payors was greatest in the low-income
tier. SI A look at the "Most Wanted" list of any state child support
agency reveals laborers, construction workers, and restaurant workers
with arrearages in the tens of thousands of dollars. 82 In a 2002 report,
HHS's Office of the Inspector General concluded that the delinquency of
60 percent of low-income non-payors is attributable to income levels,
employment history, education levels, and rate of institutionalization
rather than unwillingness to pay.S3
B.

Problems in the Setting of Child Support Amounts for Indigents

Unduly large arrearages for low-income persons have resulted both
from systemic flaws in the child support system and from the use of
processes that low-income persons don't understand and that fail to reflect the economic realities of the marketplace for unskilled labor. These
phenomena cause support orders in many cases to be set at levels that
exceed the obligor's economic means or fail to reflect his or her reasonable employment expectations. The problem is compounded by obstacles
to modification of excessive orders.
1.

Inadequate Information

For an initial support order to "correctly" set an appropriate support
amount, the court or other decision maker must have access to complete
and accurate information concerning the non-custodial parent's income
and any other information required by applicable child support guidelines. 84 For various reasons, the court often lacks this information with
so OCSE 2006 PRELIMINARY REPORT supra note I, at 2. By way of comparison, OCSE
collected $25 billion in child support during that year. Id.
SI JANET REHNQUIST. U.S. DEP'T OF HEALTH & HUMAN SERVS., CHILD SUPPORT FOR
CHILDREN ON TANF 2 (2002). In 1998, about 50 percent of non-custodial parents in the child
support enforcement system earned below !he poverty line. Id. at i, 6.
82 See. e.g., Mass.gov, Ten Most Wanted in Massachusetts for Failure to Pay Child Support, http://www.mass.gov/Ador/docs/cse/wanted/2007ffMW2007.pdf; Louisiana Dep't of
Soc. Servs., Support Enforcement Servs. Program, Non-Custodial Parent Delinquency List,
http://www.dss.1ouisiana.gov/DocumentsJOFS/AB.pdf;Va.Dep·tofSoc.Servs.• Child Support - Most Wanted Evaders, http://www.dss.state.va.us/family/wanted.html(last visited Mar.
12,2009).
83 Id. at 2.
84 See generally Robert G. Williams, Guidelines for Setting Levels of Child Support Orders, 21 FAM. L.Q. 281, 290-93 (1987) (discussing information requirements for setting child
support amounts). Information required by the child support formulas of some states includes,
for example, the obligee's income, age of the child(ren), child care and other expenses specifically related to the child(ren), the obligor's occupation, his work related expenses, and his
other dependents. Id. In addition, !he formula incorporated in the guidelines must be one that
leads to an equitable result. See infra notes 97-100 and accompanying text.

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regard to low-income parents. The parent may fail to appear,85 or the
parent's evidence concerning income and employment may be incomplete or confusing, particularly if he does not have a steady job. 86 Commonly, the only evidence of the indigent parent's income and assets
comes from the parent's own testimony, which the court may discount as
self-serving and lacking credibility.87 In these cases the amount of child
support ordered may represent nothing more than an educated guess.
2.

Imputed Income

Excessive child support awards also result from systemic flaws,
such as the use of imputed income, flawed child support guidelines, and
retroactive support awards. 88 When the noncustodial parent fails to appear at the hearing, the court will impute an income to the parent, which
then serves as the basis for the support award. 89 The court will also
impute income when it determines that the obligor is underemployedthat is, the court believes the obligor has an earning capacity greater than
is reflected by his or her actual earnings, a belief which mayor may not
be accurate. 90
Courts use different techniques for determining the amount of income to be imputed to the obligor. If relevant evidence is available, a
court may attempt to set an income amount that accurately reflects the
85 A 2001 report by the Judicial Council of California found that courts issue 70 percent
of all child support orders by default judgment. Shannon Bettis Nakabayashi, A "Dual Systern" of Family Law Revisited: Current Inequities in California's Child Support Law, 35
U.S.F. L. REV. 593, 613 (2001). A report prepared jointly by advocates for both fathers and
mothers in the child support system cited the following as reasons for low-income parents'
failure to appear: "Because they often do not have stable living arrangements, some may not
receive notice of hearings; others may receive notice, but not understand its significance, or
may be reluctant to interact with the forrnallegal system." NAT'L WOMEN'S LAW CTR. AND
CTR. ON FATHERS, FAMILIES, A~D PUB. POL'y, DOLLARS AND SENSE: IMPROVING THE DETERMINATION OF CHILD SUPPORT OBLIGATIONS FOR Low-INCOME MOTHERS, FATHERS AND CHILDREN 14 (2002) [hereinafter NAT'L WOMEN'S LAW CTR., DOLLARS AND SENSE].
86 NAT'L WOMEN'S LAW CTR., DOLLARS AND SENSE supra note 85, at 4.
87 See. e.g., Falkner v. Falkner, 769 So. 2d 933,934-35 (Ala. App. 2000); In re Warner,
905 A.2d 233, 236 (D.c. 2006); Larsen v. Larsen, 949 So. 2d 278, 279 (Fla. Dist. Ct. App.
2007); Stuber v. Stuber, No. 1-02-65,2003 WL 1826294, at *5 (Ohio Ct. App. Apr. 9, 2003);
Phillips v. Knox, No. E2ooo-02988-COA-R3-JV, 2001 WL 1523347, at *8 (Tenn. Ct. App.
Nov. 29, 2001); DHS v. Rhea, No. E2005-00330-COA-R3-JV, 2006 WL 770518, at *4 (Tenn.
Ct. App. Apr. 23, 1993); Ex parte Garrison, 853 S.W.2d 784, 787-88 (Tex. App. 1993).
88 Jessica Pearson & Esther Ann Griswold, New Approaches to Child Support Arrears,
POL'Y & PRAC. OF PUB. HUMAN SERVS., Sept. 1,2001, at 33, available at http://www.ancpr.
org/new_approaches_to_child_supporChtm (last visited Mar. 12, 2009).
89
90

Id.
See, e.g., In re Marriage of Fogle, 497 NW.2d 487, 488-89 (Iowa Ct. App. 1993)

(finding that individual who had been unemployed for 3.5 years and whom the trial court
described as an "ignorant, dull-witted, lazy, inarticulate, unmotivated, thick-headed moron of a
man" had capacity to get a forty-hour per week minimum wage job).

2008]CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR109
obligor's earning potentia1. 91 In the absence of such evidence, the court
may impute to the obligor the ability to earn the minimum wage,92 or it
may simply take a stab in the dark,93 Regardless of the technique used,
the court generally assumes a forty-hour work week,94Imputation of income frequently overestimates the income of low-income parents, who
often work less than a forty-hour week, may receive less than minimum
wage, and frequently work sporadically.9s
3.

Minimum Awards

The child support guidelines of some states incorporate other devices that routinely result in ex.cessive awards against low-income parents. More than half the states have a minimum child support award,
which in 1999 ranged from $20 per month to $179 per month,96 The
most common minimum award was $50 per month. 97 Child support at
this minimum amount may be ordered regardless of the actual income or
employment prospects of the obligor, on the theory that all parents, re91 See Quance v. Quance, No. C3-00-692, 2001 WL 32802, at *4 (Minn. Ct. App. Jan.
16, 2001) (requiring information about obligor's earnings history and current availability of
jobs; if obligor is self-employed, court requires information about obligor's present ability to
generate income from self-employment al the historical level); Rebecca Sue A. v. Joseph A.,
No. OT-99-076, 2000 WL 770137, at "2 (Ohio Ct. App. June 16, 2000) (requiring expert
testimony regarding the average hourly wage for plumbers, current job openings in the area for
plumbers of obligor's skill level, and how much these openings would pay).
92 See, e.g., In re A.P., 46 S.W.3d 347, 349 (Tex. App. 2001). A presumption to this
effect may be created by statute. See TEX. FAM. CODE ANN. § 154.068 (2002). In Marriage of
Fogle, the court imputed to father the ability to get a full-time job paying minimum wage, even
though he was unemployed and trial court found him to be an "ignorant, dull-witted, lazy,
inarticulate, unmotivated, thick-headed. moron of a man." See Marriage of Fogle, 497
N.W.2d at 488.
93 See Michael F. v. Sharon R., No. OT-00-034, 2001 WL 227068, at *2 (Ohio Ct. App.
2001) (finding that the court may exercise broad discretion when imputing income).
94 Pearson & Griswold, supra note 88, at 33.
95 A 1998 study in the state of Iowa found that imputing income on the basis of median
household income resulted in orders averaging $383, as compared to a $250 average for orders
based on individualized income data. IOWA DEP'T OF HUMAN SERVS., THREE CHILD SUPPORT
RECOVERY ISSUES: INCOME WITHHOLDING ARREARAGE RATES, ACCRUED SUPPORT DEBT
OWED TO THE STATE, ALTERNATIVES TO MEDIAN INCOME (1998). This report is discussed in
Pearson & Griswold, supra note 88, at 34.
96 JUNE GIBBS BROWN, U.S. DEP'T OF HEALTH & HUMAN SERVS., STATE POLICIES USED
TO ESTABLISH CHILD SUPPORT ORDERS FOR Low INCOME NON-CUSTODIAL PARENTS 20-22
(2000) [hereinafter U.S. DEP'T OF HEALTH & HUMAN SERVS., STATE POLICIES REPORT].
Under Federal law, the specified minimum award cannot be mandatory; it can only be a rebuttable presumption. 42 U.S.C. § 667(b)(2) (2000). However, the rebuttal grounds set forth in
state guidelines are generally narrow and unrelated to income deficiencies. For example, the
Ohio guidelines permit the court to award less than the $50 minimum only upon proof of the
obligor's "medically verified or documented physical ... disability or institutionalization in a
facility for persons with a mental illness or any other circumstances considered appropriate by
the court." OHIO REV. CODE ANN. § 3119.06 (West 2003).
97 U.S. DEP'T OF HEALTH & HUMAN SERVS., STATE POLICIES REPORT, supra note 96, at
20-22.

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gardless of income, should make some financial contribution to their
child.9 8 Consequently, the minimum award may result in a child support
obligation that constitutes a disproportionate share of, or even exceeds,
the indigent obligor's income. 99
4.

Retroactive Awards

A retroactive support award treats the accrual of child support as
commencing at some time prior to entry of the order. For divorced or
cohabiting parents, this date is generally the date when the parties separated. loo For other nonmarital parents, the accrual of child support may
begin upon the birth of the child. 101 Retroactive awards are based on the
parent's legal obligation to support his or her child from the time of the
child's birth. Failure to support the child at any time, whether or not an
order is in place, constitutes a legal default subject to later enforcement
by the courts. 102 Particularly in the case of nonmarital fathers, whose
paternity may not be definitively established until the child support proceeding, the retroactive award may extend over a period of years,103 reId. at 17.
A recent study of California child support obligors found that the lowest income group
had orders requiring payment of $2.11 per dollar earned. See Michelle Ganow Jones, Options
to Help Low-Income Noncustodial Parents Manage Their Child Support Debt, 6 WELFARE
INFORMATION NETWORK: ISSUE NOTES, Oct. 2002, at 5, available at http://www.financeproject
info.orglPublications/optionstohelplowincomeIN.htm (last visited Mar. 12, 2009). Orders of
this magnitude are possible not only because of problems in the original support-setting process, but also because arrearages, interest on arrearages, and attorney fees to parties initiating
enforcement proceedings can be added to the original support amount. See 42 U.S.C.
§ 666(c)(I)(H) (regarding arrearages); Miller v. Kelk, No. E2oo3-02180-COA-R3-JV, 2005
WL 1669849, at *8 (Tenn. Ct. App. July 18,2005) (awarding custodial parent $1,500 in attorney fees). Some states charge up to 12 percent interest on unpaid child support, substantially
increasing the amount owed. MAY & ROULET, supra note 13, at 9, 14; see also. e.g., Falkner
v. Falkner, 769 So. 2d 933, 934 (Ala. App. 2000) (finding that obligor had arrearage of
$5,232.40, plus interest of $942.70); Vitt v. Rodriguez, 960 So.2d 47, 48 (Fla. Dist. Ct. App.
2007) (stating that entitlement to interest in child support context is well established in Florida
law); Smith v. Smith, No. 2oo7AP1220-FT, 2007 WL 2442334, at *1 (Wis. Ct. App. Apr. 30,
2007) (finding that obligor owed $13,753.64 in arrears plus interest of $18,466.31). In these
states, courts may apply partial payments first to interest, leaving the arrearage intact to continue accumulating interest. See Vitt, 960 So.2d at 48. But see T.L.D. v. e.G., 849 So.2d 200,
204 (Ala. Civ. App. 2002).
100 See. e.g., Miller v. Kelk, No. E2oo3-02180-COA-R3-JV, 2005 WL 1669849, at *4-5
(Tenn. Ct. App. 2005) (finding abuse of discretion in trial court's failure to award retroactive
support).
101 See. e.g., People ex rei B.W., 17 P.3d 199,201 (Colo. Ct. App. 2000); In re Hope, No.
98-1004, 1999 WL 668715, at *2 (Iowa Ct. App. Aug. 27, 1999).
102 See, B.W, 17 P.3d at 201.
103 MAUREEN WALLER & ROBERT PLOTNICK, CHILD SUPPORT AND Low-INCOME FAMILIES: PERCEPTIONS, PRACTICES, AND POLICY 39 (1999); U.S. DEP'T OF HEALTH & HUMAN
SERVS., STATE POLICIES REPORT, supra note 96, at 6-10; Pearson & Griswold, supra note 88,
at 34. In some jurisdictions a retroactive award for the full eighteen years of the child's minority is permissible. E.g., In re Buechter, No. 2oo2-CA-22, 2002 WL 31341567, at *5 (Ohio Ct.
App. Oct. 18, 2002); In re A.P., 46 S.W.3d 347, 349 (Tex. App. 2001) (holding that a statute
98

99

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR 111

suiting in retroactive awards in the thousands of dollars. 104 Some states
add costs associated with the birth of the child and possibly a variety of
fees as well. 1O~ From the moment such an order is entered, the obligor is
subject to substantial arrearages in addition to the current support obligation. Thus, low-income obligors, who generally lack the assets to pay a
large retroactive award, enter a state of permanent arrearage. 106
Courts generally deal with arrearages by adding to the "current"
monthly support obligation an additional amount to be applied toward
arrearages. Even when the award of current support accurately reflects
the amount of support the obligor could afford to pay, the addition of an
arrearage component will inherently cause the award to exceed the obligor's ability. 107
5.

Non-Traditional Wage Trajectories

More fundamentally, child support guidelines are designed for situations in which it is possible to project an amount that the parent can
reasonably be expected to pay each month over an extended period of
time. lOS The prototypical case would be one in which the obligor has
stable employment with a constant, if not upward,l09 wage trajectory.110
For many low-income persons,. however, their job trajectory lacks this
kind of consistency. I I I Employment is sporadic, with wages fluctuating
from one job to,the next and separated by periods of unemployment, thus
causing frequent changes in the obligor's ability to pay. 112 Because of
mandates retroactive support). In others, the number of years may be limited by a statute of
limitations, see Clough v. Balliet, No. 98-009196, 2001 WL 1654952, at *1 (Mich. Ct. App.
Dec. 21,2(01), or by a requirement such as notice of the claim of paternity. See State ex rei.
Schaaf v. Jones, 515 N.W.2d 568, 570-71 (Iowa Ct. App. 1994); Buechter, 2002 WL
31341567 at *5.
104 See, e.g., Hope, 1999 WL 668715 at *3 (awarding retroactive child support of
$20,0(0); Young v. Fauth, 854 A.2d 293,295 (Md. App. 2004) (enforcing retroactive award
of $8,828); Buechter, 2002 WL 31341567 at *11 (awarding $23,274.39 retroactively).
105 See U.S. DEP'T OF HEALTH & HUMAN SERVS., STATE POLICIES REPORT, supra note 96,
at 10-12.
106 See WALLER & PLOTNICK, supra note 103, at viii.

See id.
See id. at 3.
109 The federal proVISion for triennial modification without changed circumstances,
though neutral on its face, was intended to provide an opportunity for increasing support
awards that were inadequate or had become (inadequate) due to inflation or the obligor's job
advancement. See Legler, supra note 6, at 559-60 & n. 212-13.
110 See WALLER & PLOTNICK, supra note 103, at ix-x.
I II See id. at 3.
112 See id. at 37-38; ELAINE SORENSON & HELEN OLIVER, URBAN INST., CHILD SUPPORT
REFORMS IN PRWORA: INITIAL IMPACTS II (2002), available at hllp://www.urban.org/url.cfm
?ID=410421 (last visited Mar. 12,2(09) (listing other barriers to support for low-income noncustodial parents); ELAINE SORENSON & HELEN OLrvER, URBAN INST., CHILD SUPPORT REFORMS ARE NEEDED TO INCREASE CHILD SUPPORT FROM POOR FATHERS 7 (2002) [hereinafter
SORENSON & OLIVER, POOR FATHERS), available at http://www.urban.orglUploadedPDF/41O
107

108

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the unpredictability of the obligor's ability to generate income on a regular monthly basis, the likelihood of inappropriate awards is particularly
high. 113
C.

Limitations on Modification of Support Awards

Mechanisms exist for modifying child support awards. However,
limitations on the circumstances in which modification is available, judicial and administrative hostility to downward modification, and barriers
affecting access to modifIcation procedures limit the utility of modification as a source of relief for the low-income obligor subject to an excessive support award.
Federal law requires review and adjustment of support orders every
three years at the request of either parent.I 14 However, most states will
adjust the support amount only if the change exceeds a specified threshold-either a percentage of the existing award or a monetary amount. IIS
The monetary thresholds, requiring a change in the monthly award ranging from $10 to $100,116 present a particular obstacle for indigent obligors. Changes in their already low incomes may not be suffIcient to
support a decrease in the award that exceeds the threshold amount. Furthermore, the three-year interval does not provide the flexibility needed
to respond meaningfully to the unstable economic situation of many lowincome obligors.
Both common law and federal statute also provide for modifIcation
of child support orders at any time upon a showing of changed circumstances. l17 Again, however, states have limited the availability of the
modification remedy by restricting the types of changes that warrant an
adjustment in the support amount. IIB In all jurisdictions, the change
must be "substantial," a requirement that generally translates into a quan477.pdf (finding that in 1999. only 34 percent of non-incarcerated poor fathers worked fulltime, and only eight percent worked full-time, fuU-year).
113 It is theoreticaUy possible Ihat income could be either higher or lower than projected.
In reality, however. the projection almost always overestimates income because it is generally
based on an assumption of fuU-time employment. See Legler, supra note 6, at 558 n.21O.
Studies have found that the child support obligations of low-income parents often represent an
unreasonably high proportion of their earnings, REHNQUIST, supra note 81, at 7; SORENSON &
OLIVER, POOR FATHERS, supra note 112, at 5 (making non-payment and accumulation of arrearages almost inevitable).
114 42 U.S.C. § 666(a)(lO)(A) (2000).
115 See JUNE GIBBS BROWN, U.S. DEP'T. OF HEALTH & HUMAN SERVS., REVIEW AND
ADJUSTMENT OF SUPPORT ORDERS 6 (1999); State DHS v. Rhea, No. E2005-00330-COA-R3JV, 2006 WL 770518, at *5 (Tenn. Ct. App. Mar. 27, 2006) (refusing modification because of
failure to meet 15 percent threshold).
116 See BROWN, supra note liS, at 6.
117 42 U.S.c. § 666(a)( IO)(B).
II R See BROWN, supra note liS, at 6.

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR113

titative variance between the existing and adjusted amounts similar to the
"threshold amount" requirement discussed above. 119
Some states impose other limitations that further restrict the availability of "changed circumstances" modification. Some states hold that
only changes that were unforeseeable at the time of the original order can
serve as grounds for modification. 120 This requirement affects most
cases involving employment instability, which for low-income obligors
is generally foreseeable. Another common requirement demands that the
change be involuntary and in good faith. Quitting a job is likely to be
viewed as voluntary, regardless of motivation or rationale,l2l as is termination attributable to the employee's malfeasance. 122 Continued unemployment is considered voluntary if the obligor has failed to make
sufficient efforts to find employment. 123 Some courts also view imprisonment as voluntary, based on the voluntariness of the underlying criminal act. 124
In addition to these obstacles inherent in the support modification
process, the indigent obligor seeking relief faces a widespread hostility to
downward modification of child support obligations. m At the administrative level this hostility may be embodied in policies providing less
favorable treatment for non-custodial parents seeking downward adjustment or even barring downward adjustment altogether. 126 At least one
state allows only non-custodial parents without arrears to have their orders reviewed or adjusted. 127 Further, a study by the HHS Inspector
General found that even in the absence of a stated policy disfavoring
non-custodial parents, local administrators may nonetheless deny noncustodial parents the opportunity for review and adjustment. 128
119 NAT'L WOMEN'S LAW CTR., DOLLARS AND SENSE,
120

supra note 85, at 22.

See. e.g., Robinson v. Robinson. 928 So. 2d 360, 363 (Fla. C1. Dis1. App. 2006).

121 See, e.g., State ex rei Phillips v. Knox, No. E2000-02988-COA-R3-JV, 2001 WL
1523347, at*5 (Tenn. C1. App. Nov. 29, 2001).
122 See. e.g., In re Marriage of Hester, 565 N.W.2d 351, 354 (Iowa C1. App. 1997); In re
Rossino, 899 A.2d 233, 236 (N.H. 2006); Edwards v. Lowry, 348 S.E.2d 259, 261 (Va. 1986).
123 E.g.• In re Warner, 905 A.2d 233, 235 (D.C. 2006); Bowen v. Bowen. 471 So. 2d
1274, 1276 (Fla. 1985).
124 E.g., Mascola v. Lusskin, 727 So. 2d 328, 332 (Fla. Dist. C1. App. 1999); Koch v.
Williams, 456 N.W.2d 299, 301 (N.D. 1990); Rhodes v. Rhodes, No. 00 BA 34, 2001 WL
1199877, at *3 (Ohio Ct. App. Sept. 25,2001).
125 See, e.g., BROWN, supra note 115, at 9-10; PAULA ROBERTS, AN OUNCE OF PREVENTION AND A POUND OF CURE: DEVELOPING STATE POLICY ON THE PAYMENT OF CHILD SUPPORT
ARREARS BY Low INCOME PARENTS 12-13 (2001).
126 See BROWN, supra note 115, at 9-10; see also ROBERTS, supra note 125, at 12-13
(describing the limited circumstances when low-income parents could have their custodial obligations adjusted downward or eliminated entirely).
127 BROWN, supra note 115, at 9.
128 Id. at 10. Several workers stat,ed that they feel "their responsibility is to custodial
parents and their children rather than to non-custodial parents." Id.

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Courts, too, exhibit a disinclination to make downward adjustments
in child support awards. 129 In cases where obligors are able to establish
job loss or other substantial change affecting earnings, the courts typically impute income based on a finding of voluntariness, rather than adjusting the award to reflect actual income. 13o Determinations that a job
loss was voluntary, 131 that an obligor has failed to make adequate efforts
to find a new job, 132 or that an obligor could be earning more than is paid
by his current employment 133 involve assessments of motive and credibility, value judgments about how much effort is enough, and suppositions about what might have been. All of these leave significant room
for judicial values, assumptions, and attitudes to affect the outcome.
Finally, most low-income obligors simply lack meaningful access to
processes for obtaining modification. 134 Low-income obligors have limited understanding of their legal rights, 135 do not know how to access the
legal system or present their case effectively, and are intimidated by
courts and other official fora. 136 They also lack the funds to hire legal
counsel to help them navigate the system, and no jurisdiction recognizes
a right to appointed counsel in proceedings to establish or modify the
child support amount. 137 These difficulties were acknowledged by one
judge, who stated:
[If] the contemnor is not well-educated and has not had
the continuous assistance of counsel, I do not believe
that he or she should face incarceration for criminal contempt simply because he or she failed to take measures
to seek reduction of his or her child support obligation,
129 See, e.g., T.LD. v. CG., 849 SO.2d 200 (Ala. Civ. App. 2(02); Herrera v. Sanchez,
885 So.2d 480, 481 (Fla. App. 2004).
130 E.g., T.L.D., 849 So.2d 200; Domer v. McCarroll, 271 A.D.2d 530 (N.Y. App. Div.
20(0); Phillips v. Knox, No. E2000-02988-COA-R3-JV, 2001 WL 1523347 (Tenn. Ct. App.
Nov. 29, 2(01).
131 See, e.g., T.L.D., 849 So.2d 200.
132 See, e.g., Phillips, 2001 WL 1523347.
133 See, e.g., Dorner, 271 A.D.2d 530.
134 See. e.g., Herrera, 885 So.2d at 481 (holding that an indigent father who twice attempted to initiate downward modification of support, with no hearing ever held, was in contempt for nonpayment). A study by the DHHS Inspector General found that "the
overwhelming majority of requests for review corne from parents on non-public assistance
cases." BROWN, supra note liS, at 7.
135 NAT'L WOMEN'S LAW CTR., DOLLARS AND SENSE, supra note 85, at 23 ("[M)any lowincome parents do not know of their rights 10 seek a review and adjustment."); see also
BROWN, supra note liS, at 7 (expressing concerns about adequacy of notice to parents of right
to request review).
136 See, e.g., Leslie Kaufman, Tough Child Support Laws Put Poor Fathers in a Bind,
N. Y. TIMES, Feb. 19, 2005, at B I, B4 (describing the myriad challenges for a homeless man to
pay child support).
137 See. e.g., Tetro v. Tetro, 544 P.2d 17, 19-20 (Wash. 1975) (holding that there exists
no right to counsel in child support proceedings).

2008]CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OSLIGORl15

even if the necessity of such measures would. doubtless
seem obvious to a competent attorney.138
In any event, it is too late at the point of modification to affect
arrearages that have already accumulated as a result of excessive awards,
as federal law prohibits retroactive modification of accrued child support,139 The federal prohibition on retroactive modification, often referred to as the "Bradley Amendment," was aimed at preventing "the
practice of a noncustodial parent moving to another State, allowing a
substantial debt to his or her child to pile up, and assuming that there will
be a retroactive modification of the original order that substantially
reduces or totally dismisses the debt."140 The only exception to the prohibition applies to periods when a petition for modification is pending. 141
The Bradley Amendment, like so many aspects of child support law,
addressed a legitimate problem-the willingness of judges to reduce
child support debt despite the legitimacy of the award and the obligor's
ability to pay-with a broad prohibition that also encompasses situations
in which retroactive modification would not implicate these concerns. 142
In cases with which this Article is concerned, for instance, the prohibition prevents relief to those whose award was initially set inappropriately
high, those who did not seek a modification immediately upon a reduction in income or other change of circumstances, and others with legitimate justifications for nonpayment of some or all of the support award.
The prohibition on retroactive modification removes the final safety net
for the indigent obligor who has amassed huge arrearages because of
failures in the system and his own lack of legal sophistication.
IV.

ARREARAGES AND CIVIL CONTEMPT

A system in which child support awards are commonly set beyond
the parent's ability to pay, modification procedures are neither realistically available nor likely to address inequities, and retroactive correction
is disallowed, inevitably results in the accrual by many parents of large
and unpayable arrearages. Eventually, many of these parents face
charges of contempt of court for their failure to pay the court-ordered
support.
138
139

In re Warner, 905 A.2d 233, 248 n.ll (D.C. 2006) (Schwelb, S.J., concurring).
42 U.S.C. §666(a)(9) (2000). In addition to prohibiting retroactive modification, the
Bradley Amendment required state laws to make unpaid child support a judgment by operation
of law, entitled to full faith and credit in every state. Pub. L. No. 99-509, §9103, 100 Stat.
1874 (1986) (codified at 42 U.S.C. §666(a)(9».
140 132 CONGo REC. S5303-04 (daily ed. May 5, 1986) (statement of Sen. Bill Bradley).
141 42 U.S.c. § 666(a)(9) (2000).
142

Id.

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Faithful adherence to the laws limiting the contempt power would
bar its application in these circumstances. A nonpaying obligor is in
contempt of court only if his or her noncompliance was willful-that is,
the obligor had both knowledge of the order and the ability to comply. 143
Furthermore, coercive imprisonment is permissible as a sanction for civil
contempt only if the contemnor has the present-at the time of sanctioning-ability to pay either the full amount of the arrearage or a lesser sum
set by the court as the amount necessary to purge the contempt. 144 Otherwise, no coercive potential exists 145 and imprisonment becomes merely
punitive in nature, thus demanding criminal procedural protections in order to satisfy due process. 146 Thus, ability to comply is a key issue in
contempt proceedings based on noncompliance with a child support order, both in establishing the contempt l47 and in justifying the sanction of
coercive incarceration. 148
A low-income obligor may not have had the ability to make the
ongoing support payments, in which case he or she was not in contempt
at all. 149 Or if in contempt, the low-income obligor is rarely a candidate
for civil incarceration because of the likelihood that he or she is unable to
pay the hefty sum represented by the accumulated arrearages, or even a
portion thereof that may be set by the court as the purge amount. 150
A.

Extent of Incarceration of Indigents

The inability of indigent obligors to make court-ordered payments
or to pay purge amounts would not be a systemic legal problem if courts
were not finding such obligors in contempt and then coercively imprisoning them despite their inability to pay. There is little hard data to show
the number of indigent child support obligors who are jailed for nonpay143 E.R., Rinehart v. Nowlin, 805 P.2d 88, 95 (N.M. App. 1990); cf United States v.
Harrison, 188 F.3d 985, 986 (8th Cir. 1999) (noting that the "willful" failure to pay child
support under federal Child Support Recovery Act "requires proof of an intentional violation
of a known legal duty, and thus describes a speci fie intent crime").
144 See United States v. Rylander, 460 U.S. 752, 757 (1983).
1·~5 Harrison, 188 F.3d 986.
146 See Puchner v. Kruzicki, 918 F. Supp. 1271, 1278 (E.D. Wis. 1996); In re Feiock, 263
Cal. Rptr. 437, 440 (Cal. Ct. App. 1989) (citing Hicks v. Feiock, 485 U.S. 624, 638-40
(1988)); Bresch v. Henderson, 761 So.2d 449, 450-51 (Fla. Dist. Ct. App. 2000); Brittania
Holdings Ltd v. Greer, 113 PJd 1041, 1044 (Wash. Ct. App. 2005).
147 See, e.g., Herold v. Herold, No. 04AP-206, 2004 WL 2895792, at *7-8 (Ohio Ct. App.
Dec. 14,2004) (holding that the trial court abused its discretion in finding defendant in contempt where, during the compliance period at issue, "through no fault of her own, defendant
financially was unable to comply with the court's order").
148 Ex parte Rojo, 925 S.W.2d 654, 656 (Tex. 1996).
149 See, e.g., Herold, 2004 WL 2895792 at *7-8.
150 E.g., In re Gawerc, 165 SW.3d 314, 315 (Tex. 2005).

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR117
ment, nor even the total number of child support contemnors. ISI However, the limited existing data suggest that the number is substantial:
• When a 2003 New Jersey Supreme Court ruling mandated the release of all indigent child support contemnors who had not been
represented by counsel, experts estimated that 300 persons would
be released. ls2
• The Delaware Supreme Court found that in that state the Family
Court sentenced 518 civil contemnors to a period of incarceration
in 1995. 1S3
• A 1982-1983 study found that during a two-year period, 131 civil
contemnors were jailed for nonpayment of child support in a single New Mexico county.IS4
• An Indiana child support prosecutor reported in 2002 that
2,400-3,300 child support obligors were incarcerated annually for
nonpayment, 80-85 percent of them for civil contempt. ISS
• A 2005 survey of South Carolina jails revealed that the state's
jails averaged over 1,500 child support contemnors at any given
time. IS6
• A report by the Center for Family Policy and Practice summarizes
numerous newspaper and other reports from thirty-six states documenting widespread arrests and incarcerations of nonpaying
obligors. IS7
The demographics of child support caseloads, particularly those
with significant arrearages, support the conclusion that a substantial majority of these contemnors are indigent or otherwise without the means to
pay the purge amount. According to the federal Office of Child Support
Enforcement, in 2006 over $105 billion in arrearages were owed by 11.1
lSI See generally MAY & ROULET, supra note 13, at 11-12 (describing the limited statistical information available pertaining to the number of arrests of child support obligors who do
not pay child support).
152 [d. at 29.
IS3 Black v. Div. of Child Support Enforcement, 686 A.2d 164, 167 n.4 (Del. 1996).
IS4 Michele Hermann & Shannon Donahue. Fathers Behind Bars: The Right to Counsel
in Civil Contempt Proceedings, 14 N.M. L. REV. 275, 277 (1984).
ISS MAY & ROULET, supra note 13, at 20 (citing Ind. Child Custody and Support Advisory Comm., Meeting Minutes. Sept. 3D, 2002, http://www.in.govnegislative/interimlcommittee/2002/committees/minutes/CCSA59U.pdf).
156 Elizabeth G. Patterson, Child Support Detainees by County 2009 (on file with author).
157 MAY & ROULET, supra note 13, at 13-38. These researchers found that reporting on
officials responsible for aggressive programs of arresting parents who are behind in their child
support often "represent [the officials'] efforts as being targeted only at those 'deadbeat' parents who can afford to pay but don't. In fact, however, the same [reporting] often includes
information that belies this characterization ...." [d. at 12.

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million obligors. ls8 The majority of the obligors with arrearages, and
thus subject to repeated contempt proceedings, are below the poverty
line. 159 The federal Office of Child Support Enforcement reports that 70
percent of child support arrearages are owed by noncustodial parents
with no annual earnings or earnings less than $10,000. 160 Only 4 percent
are owed by non-custodial parents with an annual income of $40,000 or
more. 1bl
The contempt process is used only with those contemnors from
whom support cannot be obtained through other enforcement techniques,
including wage withholding and seizure of assets. lb2 Non-indigent obligors against whom it is necessary to institute contempt proceedings generally pay the arrearage when threatened with jail. It can reasonably be
inferred, therefore, that when large numbers of child support obligors are
incarcerated, most are indigent.
This conclusion is further buffered by the facts of appellate cases
from throughout the nation that show indigent obligors being jailed for
civil contempt with little attention to the economic circumstances underlying their noncompliance. 163 Indigents are especially unlikely to appeal
civil contempt orders, given their lack of access to appellate counsel in
most states and the brevity of the typical contempt sentence. 1M Therefore, the reported cases can be seen as indicators of a much larger number of unappealed contempt incarcerations.
158 OCSE 2006 PRELIMINARY REPORT, supra note I. In that year only $7 billion of the
outstanding arrearages were coHected. Id.

159 See OFFICE OF CHILD SUPPORT ENFORCEMENT, THE STORY BEHIND THE NUMBERS UNDERSTANDING AND MANAGING CHILD SUPPORT DEBT, I (2008) [hereinafter OCSE STORY].
<lvailable at http://www.acf.hhs.gov/programs/cse/pol/IM/2008Iim-08-05a.pdf (reporting obligors with no or little reported income held most of the arrears).
160 Id.
161

Id.

162

See supra notes 15-27 and accompanying text.

163 Peterson v. Roden, 949 So. 2d 948 (Ala. Civ. App. 2006); Taylor v. Johnson, 764 So.
2d 1281 (Ala. Civ. App. 20(X); Blackwell v. Nowakowski, No. FAOOOl21344, 2005 WL
185414 (Conn. Super. Ct. May 27, 2005); III 1'1.' Warner, 905 A.2d 233 (D.C. 2006); In re
N.V., 890 So. 2d 1232 (Fla. Disl. Ct. App. 2005); Marks v. Tolliver, 839 N.E.2d 703, 707 (Ind.
Ct. App. 20(5); Arrington v. Dep't Of Human Res., 935 A.2d 432 (Md. 2007); Long v. State,
807 A.2d I (Md. 2002); Herold v. Herold, No. 04AP-206, 2004 WL 2895792 (Ohio Ct. App.
Dec. 14. 2004); State ex rei Phillips v. Knox, No. E2000-02988-COA-R3-JV, 2001 WL
1523347 (Tenn. Ct. App. Nov. 29, 2001); Zinnecker v. Sarver, 710 N.W.2d 726 (Wis. Ct. App.
2(06); see also McBride v. McBride. 431 S.E.2d 14, 19 n.4 (N.c. 1993) (noting that examination of appellate cases in North Carolina indicates that failure of trial courts to make a determination of a contemnor's ability to comply with purge "is not altogether infrequent").
16.+ SI!t'. e.g., Carroll County Bureau of Support v. Brill, No. 05 CA 818, 2005 WL
3489763 (Ohio Ct. App. Dec. 1:\ 2005) (finding appeal moot because sentence had already
been completed); Evans v. Evans, No. 04AP-816, 2005 WL 2.\64976 (Ohio Ct. App. Sept. 27,
2005) (lInding appeal moot because sentence had already been completed).

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR 119

B.

The Heavy Burden of Proving Inability to Pay

There are a number of interrelated reasons why courts incarcerate
substantial numbers of indigent obligors for civil contempt despite their
inability to pay the ordered support or the purge amount. Particularly
important is the lack of hard evidence on issues related to the obligor's
inability to pay, combined with the unfavorable structuring of the burden
of proof and a judicial disinclination to find obligors' testimony credible.
In civil contempt proceedings, unlike those for criminal contempt,165 absence of willfulness is treated as a defense, and the initial
burden is on the contemnor to plead and present evidence of his or her
inability to comply with the order. 166 Some states shift the burden back
to the petitioner once the alleged contemnor makes a prima facie showing of inability to comply, 167 but others place the full burden of proof in
regard to willfulness/inability to comply on the defendant. 168
Proving inability to comply can be factually complex, implicating
the economic circumstances of the obligor, his work history and potential, his available assets,169 and his own subsistence needs,17° To meet
165 In criminal contempt proceedings the state is constitutionally required to prove every
element of the offense beyond a reasonable doubt, including willfulness (ability to comply
with the order). Hicks v. Feiock, 485 U.S. 624, 637 (1987). But see In re Warner, 905 A.2d
233 (D.C. 2006) (placing burden of proving inability to pay on obligor in criminal contempt
proceeding).
166 Civil contempt proceedings are not subject to the "reasonable doubt" requirement
Hicks v. Feiock,485 U.S. 624, 638 (1987). Hence, courts presume that a court order imports a
finding of the court that the defendant has the ability to comply. Stuber v. Stuber, No. 1-0265,2003 WL 1826294 (Ohio Ct. App. Apr. 9, 2003); Britannia Holdings Ltd. v. Greer, 113
P.3d 1041, 1045 (Wash. Ct. App. 2005). Most courts thus limit the petitioner's burden to
proving the alleged contemnor's violation of the court order-generally by clear and convincing evidence. See, e.g., Rawlings v. Rawlings, 766 A.2d 98, 10l n.1 (Md. 2001) (citing MD.
RULE 15-207(e); Stuber, 2003 WL 1826294 at *4. The burden then shifts to the defendant to
prove the defense of inability to comply. E.g., Herrera v. Sanchez, 885 So. 2d 480, 481 (Fla.
Dist. Ct. App. 2004); Lyons v. Sloop, 40 S.W.3d I, 10-11 (Mo. Ct. App. 2001). In regard to
ability to pay the purge, the petitioner does not have the benefit of a presumption and thus has
the burden of proving ability to pay. See, e.g., Bowen v. Bowen, 471 So. 2d 1274, 1278-79
(Fla. 1985).
167 E.g., Falkner v. Falkner, 769 So. 2d 933, 935 (Ala. Civ. App. 2000); State ex. rei.
Moore v. Owens, No. 89-170-11, 1990 WL 8624, at *3 (Ten. Ct. App. Feb. 7, 1990).
168 E.g., Rawlings, 766 A.2d at 101 n.1 (explaining that alleged contemnor must prove he
or she made reasonable efforts to become or remain employed or otherwise lawfully obtain
funds necessary to make payment); Lyons, 40 S.W.3d at 10-11 (explaining that alleged contemnor must prove that inability to pay is not consequence of his own intentional and contumacious conduct); Stuber, 2003 WL 1826294 at *4 (stating that defendant must show inability
to pay to be real and not self-imposed, nor due to fraud, sharp practices, or intentional
avoidance).
169 See, e.g., In re Gawerc, 165 SW.3d 314, 315 (Tex. 2005).
170 See. e.g., Bryant v. Howard County Dep't of Soc. Servs., No. 93, 2005 WL 1115229
(Md. App. 2005); Rodriguez v. Eighth Judicial Dist., 102 P.3d 41 (Nev. 2004); Patterson v.
Patterson, No. 86282, 2005 WL 2471012 (Ohio Ct. App. Oct. 6, 2005); cf United States v.
Kukafka, 478 F.3d 531 (3d Cir. 2007) (discussing federal criminal prosecution). The amount

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this burden, the alleged contemnor must at the very least present evidence of his or her employment (or lack thereot), wages, expenses, and
assets,
However, gauging the ability to pay may be much more complicated than this, involving issues of good faith responsibility for other
obligations,17I voluntariness of the obligor's unemployment or underemployment,l72 and the availability of borrowed funds 173 or assets
of the original child support ordered retlects the amount that the court helieved necessary to
meet the needs of the ohligor, and the reasoning and conclusions of the court making the
award are not subject to reconsideration in a contempt proceeding. United States v. Rylander,
460 U.S. 752,756 (1983). Nor can the order be modified in such a way as to excuse some or
all of the accrued child support obligation, even if the ohligor's circumstances changed after
the child support award was made. However, a change in the obligor's circumstances after the
award can be the hasis for a finding that, at the time of the alleged contumacious act, the
ohligor lacked the ahility to comply and hence his failure to do so was not willful.
171 The obligor may have dependents other Ihan the l'hild or children for whose benefit
the order was entered. See, e.g, Larsen v. Larsen, 949 So. 2d 278 (Fla. Dist. Ct. App. 2007);
Rodriguez, 102 P.3d at 44; Patterson, 2005 WL 2471012 at * I. It is not uncommon for an
indigent child support obligor to have fathered multiple children hy different mothers, and
consequently to be subject to multiple child support orders. See, e.g., Davison v. Miss. Dep't
of Hum. Servs., 938 So. 2d 912 IMiss. App. 2(06); Herold v. Herold, No. 04AP-206, 2004
WL 2895792, at *7 (Ohio Ct. App. Dec. 14,2(04); Zinnecker v. Sarver, 710 N.W.2d 726
(Wis. Ct. App. 20(6) (noting that a second order was in another state). Further, he may be
married to or cohabiting with another woman with whom he shares children not subject to a
child support order, but whom he is legally obligated to support. A recent analysis found
family complexity to exist in about three quarters of TANF families. Daniel R. Meyer et 'II.,
Multiple Partner Fertility: Incidence and Implications/ilr Child Support Policy (Inst. For Research on Poverty, Discussion Paper no. 1300-05, May 2(05), availahle at www.irp.wisc.euu/
publieations/dps/pdfs/dp 130005 .pdf.
172 See Bowen v. Bowen, 471 So. 2d 1274, 1276 (Fla. 1(85) (finding voluntariness where
ohligor was laid off, remained unemployed for seven months, and during that time conducted
diligent search according to uncontroverted evidence); Dorner v. McCarroll, 271 A.D.2d 530
IN. Y. App. Div. Apr. 10, 2(00) (stating that failure to seek employment constitutes willful
violation of support order); see also Rodriguez, 102 P.3d at 45 (holding underemployment
negates "indigency" for purposes of appointment of counsel); cf Russell v. Armitage, 697
A.2d 630 (VI. 1997) (finding failure to vigorously pursue workers' compensation claim as
willful violation).
Similar issues may exist in regard to periods of imprisonment for criminal offenses. Some
courts treat these as periods when the obligor was unahle to comply f<:lr purposes of the contempt determination, Slate ex rei. Burkhart v. Nold. No. C2-02-1983, 2003 WL 21524991, at
*4 (Minn. Ct. App. July 8, 2003). or even suspend payments during the period of incarceration. Long v. State, 807 A.2d I, 4 (Md. 20(2). Others require evidence of the obligor's actual
income during the period of incarceration. In re A.P., 46 S.W.3d 347, 349·-50 (Tex. 2001).
Still others treat imprisonment the same as voluntary unemployment, on the thenry that the
obligor by his own wrongful conduct has placed himsdf in a position that precludes gainful
employment. Rhodes v. Rhodes, No. 00 BA 34, 2001 WL 1199877, at '1-3 (Ohio Ct. App.
Sept. 25, 2001).
) 73 In some jurisdictions the obligor's ability to horrow funds is considered relevant in
determining ability to pay, e.g., TEX. F,\vl. CODE A:'-lN. § 157.008 (Vernon 20(2), creating
factual questions concerning identification of potential lenders and their willingness to lend. A
Texas statute, for mstance, makes the "inability to pay" defense available only if the obligor
has attempted unsuccessfully to borrow, but the statute does not .specify the required breadth or
diligence of those attempts. /d. In other jurisdictions, the cnUt1S have rejected attempts to

2008]CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGORl21

owned by others 174 to satisfy the obligor's debt. There may be legal as
well as factual components to these issues. 175 The complexity of these
issues puts them beyond the understanding of most indigents, who will
rarely be able to effectively respond to the petitioner's case in these areas, much less present a case in chief of their own. Even the simplest
"inability to pay" argument requires articulating the defense, gathering
and presenting documentary and other evidence, and responding to legally significant questions from the bench-tasks which are "probably
awesome and perhaps insuperable undertakings to the uninitiated layperson."176 This is particularly true where the layperson is indigent and
poorly educated.
Adding to the obligor's burden is the potential that the court will
hold his or her testimony concerning inability to pay to be insufficient
evidence or lacking in credibility in the absence of documentary corroboration. l77 Retention of the necessary records among indigents is rare,
particularly given the widespread instability in their employment, housing, and other aspects of their lives. Even in the many states in which the
civil contemnor has a right to appointed counsel, the lack of documentary
evidence makes it difficult for the attorney to prove to the satisfaction of
the court his client's inability to pay. The indigent contemnor without
counsel will rarely if ever be able to do so.

C.

The Role of Judicial Perceptions and Attitudes

The most disturbing aspect of the case law, and a significant contributor to inappropriate coercive incarcerations, is the frequency with
which indigent child support obligors are imprisoned as a result of trial
courts' abuse of their civil contempt authority. Repeatedly, the reported
include ability to borrow in the "ability to pay" determination. See Phillips v. Knox. No.
E2000-02988-COA-R3·JV, 2001 WL 1523347, at *9 (Tenn. Ct. App. Nov. 29, 2001) (citing
and following Netherton v. Netherton, No. 01-A-01-9208-PB00323, 1993 WL 49556, at *3
(Tenn. Ct. App. Feb. 26, 1993».
174 See Gawerc. 165 S.W.3d at 315 (Tex. 2005).
175 A case may also implicate state and federal statutory limits on the proportion of an
obligor's disposable earnings that can be subjected to child support obligations. See Consumer
Credit Protection Act, 15 U.S.C. § 1673(b) (2007); OHIO REV. CODE ANN. § 3121.03 (LexisNexis 2003); Patterson v. Patterson, No. 86282, 2005 WL 2471012 (Ohio Ct. App. Oct. 6,
2005).
176 Pasqua v. Council, 892 A.2d 663, 673 (N.J. 2006).
177 See, e.g., Falknerv. Falkner, 769 So. 2d 933, 934-35 (Ala. Civ. App. 2000); Larsen v.
Larsen, 949 So. 2d 278, 279 (Fla. Dist. Ct. App. 2007); Davison v. Miss. Dep't Human Servs.•
938 So. 2d 912 (Miss. Ct. App. 2006) (discussing documentation of disability); Stuber v.
Stuber, No. 1-02-65, 2003 WL 1826294, at *4 (Ohio Ct. App. Apr. 9, 2003); DHS v. Rhea.
No. E2oo5-oo330-COA-R3-JV, 2006 WI.. 770518 (Tenn. Ct. App. March 27.2006) (discussing documentation of job search); Phillips, 2001 WL 1523347 at *8; Ex parte Garrison. 853
S.W.2d 784, 787-88 (Tex. App. 1993).

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cases show deviations from fundamental procedural requirements and establishment of purge amounts known to exceed obligors' ability to pay.
Reports of these cases demonstrate the actualization of concernS
long expressed about the potential for abuse that is inherent in unfettered
judicial discretion to impose contempt sanctions. The Supreme Court
has described the civil contempt authority as uniquely susceptible to
abuse, the untrammeled power which it places in the individual judge
creating the "prospect of 'the most tyrannical licentiousness.'" 178 The
Court identified cases involving difficult fact-finding as particularly susceptible to the arbitrary exercise of judicial power in the absence of procedural constraints. 179 These concerns were elaborated on in a leading
article by Earl Dudley:
The concern for judicial bias in contempt proceedings
comprehends not merely the formulation of powerful
sanctions but the fact-finding process as well. Findings
of fact in contempt proceedings are insulated from
meaningful appellate review by the "clearly erroneous"
standard. Thus, a judge sitting without a jury in a civil
contempt proceeding ... has enormous power to give
rein to his biases under the guise of resolving disputed
issues of fact. ISO
Dudley cautioned against the "grave potential for biased adjudication" in any contempt case involving a factual dispute. 181
In almost every case the judge will already have ruled
once on the merits against the party accused of violating
an outstanding order. He may perceive the party's subsequent conduct as evasive of his commands and be unwilling to listen to proffered explanations, or may bring
to the contempt proceeding adverse judgments about
motivation or credibility formed earlier. 182
Appellate courts in several states have expressed concern with the
repeated abuses of judicial authority in contempt adjudications, often citing the specific problem areas identified by Dudley. Faced with a case
containing serious procedural irregularities, the Florida Court of Appeals
observed,
See Inn Union, United Mine Workers v. Bagwell, 512 U.S. 821, 831 (1994).
See id. at 833-34.
180 Dudley, sl/pra note 34, at 1078 (citing the "inability to pay" issue in child support
contempt proceedings as one potentially subject to judicial bias (citation omitted)).
181 Id. at 1079.
182 Id.; accord Bagwell, 512 U.S. at 831 ("Contumacy 'often strikes at the most vulnerable and human qualities of a judge's temperament.' ") (quoting Bloom v. Illinois, 391 U.S. 194
178

179

( 1968).

2008]CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGORl23
We are deeply troubled that circuit courts continue to
illegally incarcerate people for civil contempt in the face
not only of ample case law, but also a rule which clearly
delineates the procedures that should be followed in order to ensure that the due process rights of alleged contemnors are protected. 183
Similarly strongly worded denunciations have been directed at the
pervasive practice of knowingly imposing excessive purge amounts on
indigent contemnors. This practice has been repeatedly denounced by
the Maryland appellate courts, commencing in a 2000 case in which the
Court of Appeals reviewed three joined cases:
These cases, hopefully, represent the worst in disregard
for proper, mandated procedure. . . . [T]he purge
amounts recommended by the master, and approved by
the court, were conjured up out of nothing. There was
not a scintilla of evidence to support a conclusion that
Thrower, Mason, or Miles then had or could possibly
obtain the ability to pay the purge amounts within the
time set, in order to avoid incarceration. It defies any
semblance of logic or human experience to suppose that,
on $69/week unemployment benefits and with no other
significant assets, Thrower would be able to pay $840
within a month or that on $75/week, Mason would be
able to pay $900 in three weeks. And for the master to
take judicial notice that jewelry worn by Miles, who had
no other assets and no employment, and who was being
supported entirely by his mother, was worth $4,190.76
[the exact amount of the arrearage], is so far removed
from reality as to suggest an actual disdain for proper
judicial procedure and temperament. 184
183 Bresch v. Henderson, 761 SO.2d 449, 451 (Fla. Dist. Ct. App. 20(0). In Ihis case the
obligor had appeared in court for a hearing in a modification proceeding. Apparently on its
own initiative, without notice to the obligor. and without making specific factual findings, the
lrial court determined that the obligor was behind in his support payments, held him in contempt, and ordered him incarcerated indefinitely subject to a $1,000 purge. Id. at 450. Accord
Conley v. Cannon, 708 So. 2d 306, 307 (Fla. Dist. Ct. App. 1998) (chastising trial courts for
their "studied indifference to procedural due process" in contempt cases). For other examples
of cases involving multiple procedural irregularities, see In re State Dep't of Soc. Servs. ex rei
T.M.A. v. Pickens, 972 So. 2d 1225 (La. Ct. App. 2007); Bryant v. Howard County Dep't of
Soc. Servs., 874 A.2d 457 (Md. 2(05); Thrower v. State Bureau of Support Enforcement, 747
A.2d 634, 642-43 (Md. 2000); In re McDonald, No. 01-05-00616-CV, 2005 WL 2124155
(Tex. App. 2005); see also Slagle v. Slagle, No. 2004-L-1I9, 2005 WL 2002272 (Ohio Ct.
App. 2005) (affirming imprisonment for contempt despite ambiguity of court order).
184 Thrower, 747 A.2d at 642-43.

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That the three cases before the court in Thrower v. State Bureau of
Support Enforcement were representative of a widespread problem is
evidenced by the subsequent Maryland cases in which appellate courts
were forced to reiterate Thrower's rebuke 18S and by the number of cases
from other jurisdictions in which the facts on record, statements made by
the finder of fact, or both leave no doubt of the contemnor's inability to
pay the purge amount. 186
The various abuses noted above may reflect trial judges' faith in the
correctness of the amounts that indigent obligors have been ordered to
pay and their misunderstanding of the realities of employment at the low
end of the economy. Caught up in the important goal of meeting the
economic needs of America's children and the norms of parental responsibility, they can become frustrated with the repeated court appearances
of obligors with huge arrearages, a history of nonpayment, and an endless stream of what seem to be excuses for not providing for their children. 187 They may feel the need to vindicate the authority of the court
and its orders against persons who appear to be "flaunt[ing] their defiance of properly entered court orders."188
The frustration and ambivalence are apparent in statements made by
judges imposing coercive imprisonment on non-paying obligors. An
Ohio trial court judge stated to the obligor:
185 See Bryant, 874 A.2d at 469 n.4 (holding that the imposition of a $1,000 purge amount
for obligor who eamed $8 per hour and had two olher children to support was based on "sheer
speculation"); Long v. State, 807 A.2d I, 11-13 (Md. 2002) (reversing an intermediate court's
decision to impose conditions on the release of an obligor ordered incarcerated despite lack of
a finding that he was able to pay purge amount); Rawlings v. Rawlings, 766 A.2d 98, 118 (Md.
2(01) ("As in Thrower, '[T]here was not a scintilla of evidence to support a conclusion' that
Petitioner ... had the current ability to purge ...." (citation omitted)).
186 See, e.g., supra note 163 and accompanying text; see also MAY & ROULET, supra note
13, at 43-44 (reporting on an observation of purge hearings for Chicago obligors who were
serving civil contempt sentences:

Each one attested to the fact that he did not have the money to pay child support, could not raise the money from family or acquaintances and stated that as long
as he was held in jail, he would be unable to earn the money necessary to pay child
support. Tn spite of this repeated scenario, each such defendant was returned to jail
for two additional weeks and a hearing before another judge was set for that date.).
187 MAY & RouLET, supra 110te 13, at 43 (concluding after observing child support contempt proceedings in several states that "[w]hen judges hear child support cases regularly they
are more likely to become jaded to the 'excuses' of parents who have not paid their child
support obligations. Such excuse, must seem repetitious and insincere when heard consistently."); ,\'ee Kaufman, supra note 136 (quoting service provider to homeless men:
Tn theory you are supposed to be able to go into court and you are supposed to
be able to get modifications, . " But in reality, there are a lot of judges who are sick
and tired of dads who haven't paid child support. They don't want to hear you had a
drug problem or were in prison. They just want the money and they don't even care
if you can't pay it.).
188 Thrower, 747 A.2d at 642.

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OSLIGOR125

You owed somewhere in the neighborhood of $75,000
so, you know, what you've been paying is basically a
drop in the bucket and I just feel like we've been going
round and round on this for too long now and we're not
getting anywhere, we keep going in circles. And, you
know, I appreciate the fact that you can't get blood out
of a turnip; if you can't get a decent job, you can't keep
up with your support, but I feel that this court has been
more than fair with you in the past and bent over
backwards .... 189
A Maryland trial court judge noted:
Okay, sure, he can't pay now 'cause he's in jail for failure to appear, ... but there was just a blatant disregard
back in May, June, July and August. I can't hide that. 190
A circuit court judge in Wisconsin stated:
[W]hile I sympathize with Mr. Sarver, because I don't
think it's realistic that right now he's going to be able to
make these payments, I can't ignore the size of the file
either. This issue has been going on for a while. 191
Appellate courts have acknowledged this frustration. 192 However,
understandable as trial courts' frustration may be, they abuse their authority when expressing their frustration or vindicating their authority by
depriving persons of their liberty for the offense of being unable to pay a
support award that may well have been excessive in the first place.
The above cases involved abuses in ordering incarceration and setting purge amounts. Though less often specifically identified in the appellate cases, similar abuses can occur in determining that the obligor is
in contempt. In particular, abuses can take the form of inappropriate
findings that an obligor's unemployment was voluntary, that he has not
been sufficiently diligent in seeking work, or that the obligor was voluntarily under-employed. 193 Findings of this sort negate the defense of in189 Slate v. Majoras, No. E-00-048, 2001 WL 640929, at *3 (Ohio Ct. App. June 8, 2001)
(emphasis omitted) (quoting the trial court as it revoked probation following the obligor's
conviction for criminal non-support).
190 Long, 807 A.2d at 5.
191 Zinnecker v. Sarver, No. 2005AP2195, 2006 WL 120066. at *1 (Wis. CI. App. Jan.
18,2006).
192 See Int'! Union. United Mine Workers v. Bagwell, 512 U.S. 821, 831 (1994); Lewis v.
Lewis, 875 S.W.2d 862, 864 (Ky. 1993); Thrower, 747 A.2d at 642.
193 See In re Warner. 905 A.2d 233. 242-43 (D.C. 2006); Herrera v. Sanchez, 885 So.2d
480,481 (Fla. Dist. CI. App. 2004); Clark v. Gragg, 614 S.E.2d 356, 359-60 (N.C. Ct. App.
2005); State ex rei Phillips v. Knox, No. E2000-02988-COA-R3-JV, 2001 WL 1523347, at *3
(Tenn. Ct. App. Nov. 29. 2001).

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ability to pay, leading to a finding that disobedience of the child support
order was willful, and hence contemptuous. 194
V.

A.

IMPLICATIONS OF IMPROPER CONFINEMENT

Social Effects

Serious social problems result from this phenomenon of jailing indigent parents. Not the least of these is the fact that coercive imprisonment
of those who are unable to pay is counterproductive to the goals of the
child support enforcement program itself. 195 During the term of imprisonment, the contemnor is largely disabled from generating the income
necessary for payment of child support. 196 He also is incapable of providing any other form of support or assistance to the child or the custodial parent. Furthermore, imprisonment causes some contemnors to lose
jobs from which wage withholding was providing or could have provided
some level of support. 197
The prospect of imprisonment causes a substantial number of indigent fathers to "go underground," leaving the home state and subsisting
through sources of income that will not reveal the individual to the child
support enforcement system. 198 Not only does this cost the child
whatever economic support might have been provided by the father, but
it also removes any prospect of a social relationship between father and
child, with the varied emotional and psychological benefits for the child
that can arise from such a relationship. 199 In addition, non-custodial parSee, e.g., T.L.D. v. C.G., 849 So. 2d 200, 206-07 (Ala. 2002).
See Rodriguez v. Eighth Judicial District Court, 102 P.3d 41, 46 n.9 (Nev. 2(04)
(acknowledging counterproductiveness of extended jail stays for child support contemnors);
Dudley, supra note 34, at 1076 (expressing view that dangers of bias associated with contempt
are "greatly reduced" in proceedings to enforce child support orders because imposition of
contempt sanctions is in tension with the ultimate goal of providing child support); cf. Phillips,
2001 WL 1523347 at * 10 (noting the cOllnterproductiveness of driver's license revocation as a
means to coerce obligor's employment and payment of child support).
196 A number of incarcerated child support obligors participate in work release programs,
which allow them to generate income during the term of imprisonment. See, e.g., Black v.
Div. of Child Support Enforcement, 686 A.2d 164, 167 n.4 (Del. 1996). In a work release
program, an inmate may leave actual confinement during certain hours to work or, in some
cases, to seek employment. Rawlings v. Rawlings, 766 A.2d 98, 119 (Md. 2(01). But see
Peterson v. Roden, 949 So. 2d 948, 950 (Ala. Civ. App. 2006) (noting the termination of a
conlemnor from work release program for rule violations).
197 See, e.g.. Sevier v. Turner, 742 F.2d 262, 265-66 (6th Cir. 1984); Wilson v. Holliday,
774 A.2d 1123, 1127 (Md. 200 I).
198 Cf. NAT'L WOMEN'S LAW CTR., DOLLARS AND SENSE, supra note 85, at 11 (proposing
that excessive awards dtive obligors into underground economy).
199 See, e.g., JEFFREY ROSENBERG & W. BRADFORD WILCOX, U.S. DEP'T OF HEALTH &
HUMAN SERVS., THE IMPORTANCE OF FATHERS IN THE HEALTHY DEVELOPMENT OF CHILDREN
(2006), available at www.childwelfare.gov/pubs/usermanllals/fatherhood/fatherhood. pdf.;
Linda L. Dahlberg, Youth Violence in the Vllited States: Major Trends, Risk Factors, alld
Prl'l'etltil'e Approaches, 14 AM. J. PREVo MED. 259 (1998).
194
195

20081CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR 127

ents working in the underground economy are subject to exploitation by
unscrupulous employers and may see criminal activity as their only alternative for economic survival,2°o

B.

Due Process Violations

From a legal perspective, the widespread civil incarceration of persons who are unable to meet the conditions of their release presents a
significant due process problem. The cavalier treatment of coercive imprisonment for civil contempt has been justified by the assumption that
the civil contemnor can obtain release at any time by complying with the
court order, and hence "holds the keys of his prison in his own
pocket."20t This is not the case with regard to indigent child support
obligors. Large numbers of these persons have been jailed subject to
conditions of release that they are unable to meet. "Because it is impossible to coerce that which is beyond a person's power to perform, once
the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process."202 Under
these circumstances, the coercive civil sanction is transformed into a
criminal punishment which has been imposed in violation of the Constitution. 203 The very fact of the incarceration of large numbers of civil
contemnors who are unable to meet the conditions of release is thus in
itself a serious due process violation. 204
In addition, the processes by which these indigents came to be incarcerated are reflective of widespread deviations from fundamental fairness and demonstrate the need to re-examine the civil-criminal
distinction in applying the Due Process Clause to contempt proceedings.
In United Mine Workers v. Bagwell, a case involving complex labor injunctions, the Court acknowledged the possibility that some civil contempt cases may demand more than the rudimentary "notice and hearing"
level of due process that has traditionally been accepted, and expressed
reservations about the widely differing treatment of civil and criminal
contempt. 20S The Court suggested that heightened procedural protections
may sometimes be necessary in ostensible civil contempt proceedings in
200 See Ann Cammell, Expanding Collateral Sanctions: The Hidden Costs o(Aggressive
Child Support Eil(orcement Against Incarcerated Parents, 13 GEO. J. ON POVERTY L. &
POL'Y. 313, 327 (2006).
201 See Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
202 Taylor v. Johnson, 764 So. 2d 1281, 1282 (Ala. Civ. App. 2000).
2m See Bresch v. Henderson, 76J So. 2d 449, 450 (Fla. Dis\. Ct. App. 2000),
204 The duration of a civil contempt sentence can be as brief as a few days, or it can be a
year or more, or even unlimited. E.g., Clark v. Gragg, 614 S.E.2d 356 (N.C. Ct. App. 2005);
In re Brownhill, No, 14-07-00346-CV, 2007 WL 1624776 (Tex. App, June 7, 2007).
20S Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 832-33 (1994).

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order to protect parties from erroneous deprivations and to prevent the
arbitrary exercise of judicial power. 206
The Court based its categorization of the proceedings as criminal on
three primary factors: 207
(1) Factual Complexity: The complexity of the fact questions in-

volved in a case increases the need for more extensive and
even-handed fact-finding processes in order to promote accuracy. The Court stated in Bagwell that the "need for extensive,
impartial fact-finding is less pressing" when the alleged disobedience involves "discrete, readily ascertainable acts, such as
turning over a key. "208
(2) Seriousness of the potential Penalty: In Bagwell, the Court felt
that the magnitude of the potential penalty-more than $32 million in fines-demanded a high degree of procedural regularity
in order to protect against error. 209
(3) potential for Abuse: Overlying all contempt proceedings is the
compromised neutrality of the judge, which can lead to arbitrary
decision-making and other abuses of discretion. 21o
These three factors also support greater procedural regularity in
child support contempt cases where an obligor who arguably lacks the
ability to pay the ordered support is threatened with coercive imprisonment. Although the finding in Bagwell was limited to the situation
before the Court, the holding demonstrates the Court's concern with the
skeletal fact-finding procedures that have been accepted in civil contempt proceedings, and signals a potential for heightened due process
scrutiny of such proceedings in the future.
See id.
See id. at 833-34 (citing two additional factors to justify the use of summary procedures to adjudicate "direct contempt," that is, contempt occurring in the courtroom during
court proceedings: (I) the need for procedural minimalism in order for the court to maintain
order and conduct its proceedings and (2) the reduced danger of erroneous fact-finding when
the judge has first-hand knowledge of the facts).
208 /d. at 833. The Court used "payment of a judgment" as another example of a violation
involving a simple, affirmative act where assurance of disinterested fact-finding and evenhanded adjudication was less pressing. In child support contempt cases where ability to pay is
an issue, the assumption does not hold. Dudley, supra note 34, at 1078-79. The potential
complexity of the factual issues, together with the history of judicial abuse in this area and the
seriousness of the incarceration penalty that is so often used in these cases easily warrants an
expansion of protective procedures beyond those currently available.
209 Bagwell, 512 U.S. at 831 ("To the extent that such contempts take on a punitive character, however, and are not justified by other considerations central to the contempt power,
criminal procedural protections may be in order.")
2to [d. at 834 ("The risk of erroneous deprivation from the lack of a neutral factfinder may
be substantial.").
206
207

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR129

An alternative method for analyzing the appropriateness of heightened procedural protections in civil contempt cases is to apply due process standards to particular rights and procedures using the Mathews v.
Eldridge standard. 211 This test determines what process is due in a given
proceeding based on analysis of the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions. 212 The numerous state and federal holdings that have
recognized a right to counsel for contemnors facing possible imprisonment have been based on this analysis. 213 These rulings emphasize the
weight of the individual's interest in avoiding incarceration and the high
risk of error if counsel is not provided, and find that these concerns easily
outweigh the state's interest in administrative convenience.
Indeed, the private interest at stake in civil contempt proceedings
enforceable by coercive imprisonment is of the highest order: the potential loss of liberty through incarceration by the state. In fact, the loss of
liberty through civil contempt can be greater than for criminal contempt,
due to the potentially greater duration of the confinement.214 And, as
one court noted, "from the perspective of the person incarcerated, the jail
is just as bleak no matter [whether the incarceration is labeled civil or
criminal]."215
The state's interest in providing financial support for children (or
repaying the state for welfare benefits provided to a child) cannot justify
procedural laxness that results in imprisonment of those unable to pay
the purge amount. Not only is the coercive effect absent, but imprisonment has the counterproductive effect of reducing the obligor's ability to
generate the resources necessary for future payment. The government's
interest in administrative convenience and cost reduction has repeatedly
211 See, e.g., Smoot v. Dingess, 160 W. Va. 558,561 (W. Va. 1977) (declaring that due
process requires sworn testimony and preparation of a transcript in civil contempt proceedings
leading to incarceration).
212 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
213 E.g., Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir. 1985); Walker v. McLain, 768 F.2d
1181 (10th Cir. 1985); Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984); Ridgway v. Baker, 720
F.2d 1409 (5th Cir. 1983); Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984); Dube v.
Lopes, 481 A.2d 1293 (Conn. Super. Ct. (984); Black v. Div. of Child Support Enforcement,
686 A.2d 164 (Del. 1996); Campbell v. Manning, 697 So. 2d 1020 (Fla. App. 1997); Marks v.
Tolliver, 839 N.E.2d 703 (Ind. App. 2005); McNabb v. Osmundson, 315 N.W.2d 9 (Iowa
1982); Rutherford v. Rutherford, 464 A.2d 228 (Md. 1983); Mead v. Batchlor, 460 N.W.2d
493 (Mich. 1990); Cox v. Slama, 355 N.W.2d 401 (Minn. 1984); Allen v. Sheriff, 511 N.W.2d
125 (Neb. 1994); Pasqua v. Council, 892 A.2d 663 (N.J. 2006); McBride v. McBride, 431
S.E.2d 14 (N.C.1993); State v. Gruchalla. 467 N.W.2d 451 (N.D. 1991); Ex Parte Gonzales,
945 S.W.ld 830 (Tex. Crim. App. 1997); Russell v. Armitage, 697 A.2d 630 (Vt. 1997); Tetro
v. Tetro, 544 P.2d 17 (Wash. 1975); Smoot v. Dingess, 236 S.E.2d 468 (W. Va. 1977); State v.
Pultz, 556 N.W.2d 708 (Wise. 1996); see also Parcus v. Parcus, 615 So. 2d 78 (Ala. 1993)
(applying state rule requiring counsel).
214 McBride, 431 S.E.2d at 19 n.3.
215 Walker, 768 F.2d at 1183.

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been held insufficient to justify denial of procedural safeguards to contemnors facing civil incarceration. 216
Without examining in detail the risk of error associated with specific procedures. it can be readily concluded that the procedures now in
place leave a wide margin for error in regard to the critical fact of the
low-income obligor's ability to pay either the ordered child support or
the purge amount. Indigent obligors bear the burden of pleading and
proving their inability to pay. a burden made heavier by trial courts' frequent skepticism concerning their credibility. The issues as to which
these obligors bear the burden can be complex, and subject to presumptions, pleading technicalities, and other obstacles for these uninitiated
laymen. In many states they have no right to appointed counsel, and in
states that provide counsel, the trial courts appear willing to find waiver
of that right in highly questionable circumstances. 217 The risk that this
procedural milieu wiH result in an erroneous finding of ability to pay is
immense.
Application of the Mathews v. Eldridge analysis thus leads to the
conclusion that current civil contempt procedures do not provide obligors
with a fundamentally fair hearing on the issue of ability to pay, and
hence violate the Due Process Clause. Correction demands thorough reexamination of the policies and procedures by which coercive imprisonment is imposed on child support contemnors.
VI.

SUPPORTING CHILDREN VS. PUNISHING POVERTY:
RE-CALIBRATING THE SYSTEM

Enforcement of the child support obligations of non-custodial parents is an important and difficult task. The present federal/state child
support enforcement system developed over a number of years, with adjustments being made and new tools added as experience demonstrated a
need. Adjustments that focused on enhancing the states' ability to locate
recalcitrant obligors and their assets and extract payment have produced
the effective machine for supporting America's children that policy makers and child advocates envisioned.
216 See, e.g., Walker, 768 F.2d at 1184 ("While the state does have an interest in minimizing the cost of such proceedings, this interest in monetary savings cannot outweigh the strong
private interest of the petitioner and the substantial procedural fairness achieved by providing a
lawyer for the indigent defendant in a civil contempt proceeding.").
217 E.g., Arrington v. Dep't of Human Res., 935 A.2d 432, 438 & n.6 (Md. 2(07);
Thrower v. State Bureau of Support Enforcement, 747 A.2d 634, 642-43 (Md. 2000) (criticizing "the farce that passed for a waiver inquiry" by the trial judge); Blackston v. Blackston, 802
A.2d 1124 (Md. Ct. Spec. App. 2(02); N. v. A.R.. Nos. E-00-036, E-00-037, 2001 WL 127343
(Ohio Ct. App. Feb. 16,2(01); Cottingham v. Cottingham, 193 S.W.3d 531, 536-37 (Tenn.
2(06); III re Cohen, No. 2-06-334-CV, 2006 WL 3438060 (Tex. Ct. App. Nov. 30, 2006).

2008]CIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR131

Experience also has demonstrated, however, that for many noncustodial parents the problem is deeper and more complex than recalcitrance. Although recalcitrance may be part of the picture, it is subsumed
in the larger problems of poverty.llS The challenges for programs seeking child support from these parents lie in accurately assessing a reasonable child support award, retaining sufficient enforcement tlexibility to
accommodate frequent changes in ability to pay, and using enforcement
tools in a way that comports both with due process and achievement of
the goals of the program. Failures of the child support enforcement system in these areas have been compounded by the failures of the legal
system in administering its awesome contempt power, to the end that
indigent parents are deprived not only of their assets, but their physical
liberty as well.
VII.

AVOIDING ARREARAGES: SYSTEMIC CORRECTIONS

Recently, some attention has turned to avoiding the accrual of unwarranted and uncollectable arrearages. In particular, the agencies that
administer the child support enforcement system have begun to experiment with adjustments to better accommodate the situations of indigent
obligors. The federal Department of Health and Human Services is itself
encouraging states to modify systemic mechanisms that lead to non-willful accrual of arrearages, to develop expedited procedures for modifying
support awards when circumstances change, and to forgive the state
share of accrued arrearages in certain circumstances. 219
Reforms in these areas are badly needed and will go far toward reducing the incidence of improper incarceration, particularly in relation to
future child support orders. However, reforms in this area are in their
infancy, and few states have made the significant adjustments in their
21S Policy makers working with the reformed welfare program (Temporary Assistance for
Needy Families, or TANF) have come to realize that there are numerous barriers that impede
successful job placements for indigent persons. These barriers include physical and mental
health problems, lack of transportation, substance abuse, and lack of education or job skills.
See supra notes 66-72 and accompanying text.
219 See, e.g., OFFICE OF CHILD SUPPORT ENFORCEMENT, MANAGING CHILD SUPPORT ARREARS, A DISCUSSION FRAMEWORK: SUMMARY OF THE ADMINISTRATION FOR CHILDREN AND
FAMILIES RO I, II & III THIRD MEETING ON MANAGING ARREARS (2003), available at http://
www.acf.hhs.gov/programs/cse/pubs/2003/reports/arrears (last visited Mar. 12, 2009); OFFICE
OF CHILD SUPPORT ENFORCEMENT, POLICY INTERPRETATION QUESTIONS FOR 1999 (1999),
available at http://www.acf.hhs.gov/programs/cse/pol/PIQ/1999/piq-9903.htm (last visited
Mar. 12, 2009); OFFICE OF CHILD SUPPORT ENFORCEMENT, POLICY INTERPRETATION QUESTIONS FOR 2000 (2000), available at http://www.acf.hhs.gov/programs/cse/poIIPIQ/2000/piq00-D3.htm (last visited Mar. 12, 2009). The success of forgiveness programs is limited by the
fact that although states and custodial parents may accept less than full payment of child
support arrearages owed them, the same is not true of any portion of the arrearages owed to the
federal government. OFFICE OF CHILD SUPPORT ENFORCEMENT, POLICY INTERPRETATION QUESTIONS FOR 2000, supra.

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child support guidelines and related laws and practices that are necessary
to correct the problems identified by this paper. Even if such reforms
were widespread, additional measures would be necessary to reduce or
eliminate improper use of coercive incarceration in regard to existing
orders and already-accrued arrearages. Any of the following would be
steps toward a more just and productive system.

VIII.

A VOIDING

CONTEMPT CHARGES:

INTERVENTION AND COMPROMISE

A.

IJil'ersion

(~l

Contt'mpt Cases

Laws or rules in some states provide for automatic initiation of contempt proceedings when a certain number of payments have been missed
or when arrearages reach a certain level. 220 Mandatory contempt laws
such as these should be modified to allow an assessment of the defendant's means for reaching program goals prior to the filing of a contempt
action. In many cases, modification of the support amount, forgiveness
of arrearages, or enrollment in a fatherhood program may be more appropriate. Contempt charges should generally be foregone or dismissed if
the obligor is working, wages are being withheld at an appropriate level,
and the obligor has no other source of revenue. If an indigent obligor is
employed, and his wages are subject to withholding to meet the child
support obligation, a coercive contempt proceeding adds little or nothing
toward the achievement of program objectives. It is in these cases that
incarceration is most counterproductive. Similarly, contempt charges
should not be pursued against an obligor who is participating in a program that provides assistance with employability skills, job placement,
and responsible fathering. The desirability of more individualized approaches to enforcement was recognized by the federal Department of
Health and Human Services, which recommended in its Strategic Plan
for 200S-2009 that enforcement approaches be customized to distinguish
between those who refuse to pay and those who cannot pay.22 I
B.

Bradle.v Amendment/Forgiveness (4 Federal 5'!lare

The individuals currently being imprisoned on account of their failure to pay unwarranted arrearages can be truly helped only if a mechanism exists to forgive or adjust the amount of the accrued debt.
Otherwise. they will continue to live under threat of arrest and incarceration, which will affect their choices concerning residence, relationships,
:':'0

E.li., S.c. R.

2:' I

U.S.

Cr. 24; 9TH 1LD. DIST .• N.;"!' R. Cr. FO!{M 9-608.
& HUMAN SFRVS .• :"iAnO~AL. CIIILU SUPf'OR r E~FORCLMFNT:
STR.\TFGIC PUN FY 2005-2(1)9. at 12 (20041. (mlilable at http://www.acLhhs.gov/programs/
co,c/pu!1s/2004/Strategic_PbnJY2005-2009.pdf.
F.\M.

DEf" r OF HEAl. TH

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR133

and sources of income. Problems relating to arrearages that have already
accrued can be fully addressed only by modifying the Bradley Amend
ment's prohibition on retroactive modification of child support awards.
A prohibition on reduction of accrued child support debt serves an
important purpose when the system has functioned properly, producing a
reasonable child support award that is within the means of the obligor.
The problem with the prohibition is that it leaves no room for correction
of error. Nor does it allow for forgiveness of child support debt in the
context of programs aimed at promoting the individual's long-term economic and social contribution to the child. An appropriately worded
amendment to the law could create exceptions that would enable courts
and child support agencies both to relieve individuals from unconscionable, if not unconstitutional, debts and to fully re-engage absent parents in
the lives of their children.
M

IX.

A VOIDING

IMPRISONMENT: JUSTICE IN CONTEMPT PROCEEDINGS

The above measures are aimed at reducing inappropriate contempt
incarcerations by enhancing low-income obligors' ability to remain in
compliance with the court order. Without noncompliance, there is no
contempt, and hence there should be no incarceration for contempt.
Even universal implementation of such measures, however, would not
eliminate either willful or non-willful non-compliance with child support
orders by low-income obligors. Consequently, measures to assure due
process for low-income persons threatened with civil incarceration are
vital whether or not reforms in the mechanisms for setting and modifying
support awards are undertaken. Without such reforms, civil contempt
process will remain the highly discretionary judicial preserve that it was
in common law England, with none of the procedural niceties that limit
courts' ability to deprive persons of physical liberty in the criminal
realm. 222
A.

Judicial Education

It has been argued that avoidance of error in contempt proceedings
can be adequately accomplished through education and training of
judges, and this view was recently accepted by the New Jersey Court of
Appeals. 223 Training and education of judges on matters relevant to correct decision-making in civil contempt cases involving low-income child
support obligors would indeed be helpful. Trial courts have little experience with adjudicating child support issues in this population, as child
support litigation between indigent parents was infrequent prior to the
222
223

See. e.g.• S.c. R. FAM. CT. 24; 9TH JUD. DIST., N.M. R. CT. FORM 9-608.
Pasqua v. Council, 892 A.2d 663, 669 (N.J. 2006).

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federal legislation. Moreover, by replacing judicial with administrative
authority in the earlier stages of most child support proceedings involving indigents, the system limits the opportunities for judges to become
familiar with the circumstances of these parties. Thus, real reform does
demand improvement in judicial understanding of the jobs and job-seekers in the low end of the economy so that judges have a better factual
basis on which to decide issues such as underemployment and imputed
income.
However, the magnitude of the coercive incarceration penalty, the
frequency with which it appears to be imposed, and the number of cases
evidencing abuse of judicial authority in this area demand more concrete
protections against abuse of discretion and other sources of error. Indeed, the New Jersey Court of Appeals was reversed by the New Jersey
Supreme Court, denying that the "good intentions and fair-mindedness of
a Superior Court judge are ... an adequate constitutional substitute for
[the Constitution's procedural protections] when a jail term is at
stake."224 The court continued, "However well intentioned and scrupulously fair a judge may be, when a litigant is threatened with the loss of
his liberty, process is what counts."225

B.

Burden of Proof

Of particular importance in creating an environment conducive to
abuse of judicial discretion in child support contempt cases are the rules
and practices related to proving the critical element of "ability to comply." In criminal contempt proceedings, the prosecution has the burden
of not only proving, but proving beyond a reasonable doubt, that the
obligor had the ability to comply with the child support order. In a civil
contempt proceeding, however, "inability to comply" is treated as a defense to the charge of contempt. 226 The issue, though central to the element of willfulness, will not be considered unless the obligor raises the
issue and presents a prima facie case. In many jurisdictions the obligor
carries not only the burden of production, but also the burden of proof on
the issue of inability to pay. The indigent obligor's inherent difficulties
in meeting this burden are compounded by the virtually unlimited discretion of the court to disregard testimony or other evidence presented by
the obligor as lacking in credibility.
The comparative potential for an erroneous finding of contempt between civil and criminal contempt proceedings is thus dramatic. In the
criminal context, proof of willfulness beyond a reasonable doubt must
Id. at 670.
Id. at 673.
226 Paul M. D. Harrison. Equity: Financial Inability to Comply with a Decree: Imprisonment for Debt, 48 MICH. L. REV. 877, 877-79 (1950).
224

225

2008]CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLlGORl35

precede incarceration. In the context of civil contempt, there is a presumption of willfulness which must be rebutted by an indigent and unsophisticated obligor in order to avoid incarceration, and any attempt to do
so can be and often is disregarded by the court as non-credible.
The potential for erroneous incarceration in civil contempt cases
could be substantially reduced by allocating to the petitioner the burden
of proof concerning ability to pay, even if the standard of proof were less
demanding than the reasonable doubt standard that applies in criminal
contempt cases. If the burden of going forward is to remain on the obligor, only a minimal showing should be required to make a prima facie
case, and prompts by the court to elicit this evidentiary showing by the
obligor should be required.
Allocation to the obligor of the burden of proof is particularly
troubling when the issue is ability to pay a purge amount necessary to
avoid or end imprisonment. Without the ability to purge, imprisonment
must be considered criminal rather than civil,227 and cannot be imposed
without a full criminal trial. 228 Thus, the only thing that stands between
the contemnor and his right to a jury trial with all the constitutionally
required trappings is the finding of ability to pay the purge amount. The
state should bear the burden of proving the facts necessary to justify the
extraordinary action of imprisoning a person without these procedural
protections.
C.

Standard of Appellate Review

Re-allocation of the burden of proof, while important, is not sufficient to protect against abuses that lead to erroneous incarceration in
child support cases. Without meaningful appellate review, a court can
continue to engage in slanted or sloppy fact-finding or indulge its assumptions about the ease of finding jobs, the amount that can be earned,
or the general unscrupulousness of nonpaying obligors, regardless of the
burden of proof. 229 A deferential "abuse of discretion" standard is normally used in appellate review of civil contempt cases. Under this standard the trial court's finding of contempt will not be reversed unless (1)
the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment,230 or (2) there is no evidence
227 See. e.g., Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir. 1985) (noting that the
line between civil and criminal contempt is a fine one).
228 Mead v. Batchlor, 460 N.W.2d 493. 499-500 (Mich. 1990) (quoting Sword v. Sword,
249 N.w.2d 88. 98 (Mich. 1976) (Levin, J., concurring».
229 See, e.g., In re Warner, 905 A.2d 233, 234 (D.C. Ct. App. 2006) (presenting a criminal
contempt case tried under reasonable dloubt standard).
230 Walters v. Murphy, No. 04-COA-044, 2004 WL 2757598, at *1 (Ohio Ct. App. Dec.
2,2004).

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to support the trial court's finding. 23 1 This highly deferential approach to
review of contempt orders has its roots in the historically exclusive dominion of the trial judge in imposing contempt sanctions. As with other
aspects of contempt procedure, the standard of review and the degree of
discretion to be left to the trial courts in making contempt determinations
should be re-examined in light of current legal norms.
Limitations on judicial review in particular areas are justified by the
value of the trial judge's personal observation of persons and events during the trial, or by the absence of legal standards against which the trial
court's decision can be measured. 232 The substantiality of the effects of
an erroneous decision is also a factor. 233 The extent of judicial review in
a particular area may evolve over time as experience with trial court decision making on the relevant issues provides a basis for creation by the
appellate courts or the legislature of parameters to limit or guide the exercise of trial courts' discretion. 234 Enactment of the federal sentencing
guidelines is an example of this evolution from highly discretionary decision-making to placement of substantial limits on discretion. 235
With regard to determining whether a child support obligor had sufficient means to make the required payment,· it might be argued that the
large number of such cases heard by the trial court gives it particular
insight warranting appellate deference. However, the evidence that such
expected insights either are not possessed or are ignored by many trial
courts militates against reliance on this factor. Further, the severity of
the consequences of error and the potential for extracting standards for
decision-making from the large number of decided cases suggest that a
less deferential review of trial courts' "ability to pay" determinations is
now appropriate.

D.

Assessing Obligor's Credibility

Meaningful adjustment of the standard of review must take into
consideration the importance of credibility determinations in trial court
decision-making concerning ability to pay. Credibility determinations
are normally given extreme deference by reviewing courts because of the
trial judge's ability to observe visual and auditory signals of the witness'
Gallaher v. Breaux, 650 S.E.2d 313, 315 (Ga. Ct. App. 2007).
232 Pierce v. Underwood, 487 U.S. 552, 558-59 (1988); Martha S. Davis, Standards of
Review: Judicial Review of Discretionary Decisionmaking, 2 J. App. PRAC. & PROCESS 47, 49
(2000).
233 Pierce, 478 U.S. at 563.
234 Davis, supra note 232, at 49.
235 See Koon v. United States, 518 U.S. 81 (1995); Davis, supra note 232, at 73-74
(discussing Koon, 518 U.S. 81).
231

2008jCIvIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR137

truthfulness. 236 This is a powerful argument. 237 However, the importance of such observations is diminished when economic and cultural
ditferences between judge and witness impair the judge's ability to discern whether particular statements or behaviors indicate deception or dishonesty.238 Inappropriate credibility determinations resulting from these
phenomena are readily observable in child support contempt cases.
However, the rule of deference to credibility determinations by the finder
of fact is so firmly embedded in our legal culture that even a reviewing
court that is highly skeptical of a trial court's finding on credibility will
generally defer to it nonetheless. 239
There is, however, some precedent for limiting fact-finders' discretion with regard to credibility. Administrative Procedure Acts at both the
state and federal levels give agency decision-makers de novo fact-finding
authority following a hearing before an Administrative Law Judge (AU),
thus allowing abandonment of credibility determinations by the AU, despite the latter's opportunity to observe the witnesses. 24o
Amelioration of the problems related to credibility determination in
child support contempt proceedings may not require abrogation of the
trial court's discretion in this area, but it does necessitate the creation of
guidelines and controls. Concerns about credibility determination focus
on the credibility of low-income obligors' testimony and other evidence
in regard to ability to pay, There are a variety of corrective mechanisms
236 Comment, Advantage Which the Original Trier of Facts Enjoyed over Reviewing
Court from Opportunity of Seeing and Hearing Witnesses, III A.L.R. 741 (1937).
237 The argument may be overstated, however, as studies have indicated that people are
rarely adept at interpreting such signals. See Gerald R. Miller & Judee K. Burgoon, Factors
Affecting Assessments of Witness Credibility, in THE PSYCHOLOGY OF THE COURTROOM 169,
191 (Norbert L. Kerr & Robert M. Brayeds., 1982) (concluding, based on review of research
concerning detection of deception, that "[i]n attempting to determine whether a communicator
was lying or telling the truth. observers in most studies were right about half the time"). See
generally LOUIS L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 588 (1965) ("Discretion, however valuable, can be a facade for inadequate thinking, failure to face issues, hidden experiences, or downright dishonesty.").
238 See, e.g., Robert E. Kraut & Donald B. Poe, Behavioral Roots of Person Perception:
The Deception Judgments of Customs Inspectors and Laymen, 39 1. PERSONALITY & Soc.
PSYCHOL. 784 (1980); Miller & Burgoon, supra note 237.
239 See, e.g., In re Warner, 905 A.2d 233, 243-45 (D.C. Ct. App. 2006) (Schwelb, S.1.,
concurring). Having noted that "in light of the trial judge's credibility findings, I cannot fault
the court's affirmance of Warner's conviction," id. at 243, Judge Schwelb stated, "In the present case the trial judge apparently found that Warner refused to work when he could have
worked. Although the proof that this failure was intentional was perhaps less than overwhelming, I cannot say that there was no evidence to support the finding. Thus, although the record
does not reflect that the judge or the District focused on the difference between a culpable
refusal to pay and genuine inability to do so as carefully as they might have done, I discern no
basis for a reversal." Id. at 245.
240 See 5 U.S.C. § 557 (2007) ("On appeal from a review of the initial decision, the
agency has all the powers which it would have in making the initial decision except as it may
limit the issues on notice or by rule.").

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that could ameliorate these concerns. Establishment in each state of a
uniform standard for determining credibility would promote consistency
and fairness in judicial decision-making. The standard should be one
that gives the benefit of the doubt to indigent obligors who are burdened
with child support obligations inflated by the systemic flaws discussed in
this Article. 241 Only in the clearest cases should voluntary underemployment be used as the basis for a contempt finding.
Another approach, which can be combined with the preceding one,
would require trial courts to explain, in writing, the basis for a finding
that the obligor's evidence of inability to pay is not credible, with appellate courts having authority to measure these findings against a standard
of proof. With regard to the obligor's ability to pay a purge amount, a
rebuttable presumption that low-income obligors lack the ability to pay
would be appropriate. Obligors benefited by the presumption could be
identified by characteristics such as illiteracy, poverty, intermittent employment, or disabilities.
E.

Representation by Counsel

The efficacy of the above adjustments in reducing the risk of error
in "ability to pay" determinations requires that indigent obligors have
access to legal assistance. The Supreme Court has long recognized the
importance of counsel to assuring fact-finding accuracy, stating in a 1932
case:
Even the intelligent and educated layman has small and
sometimes no skill in the science of law. . . . He lacks
both the skill and knowledge adequately to prepare his
defense, even though he has a perfect one. He requires
the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he
faces the danger of conviction because he does not know
how to establish his innocence."242
The Supreme Court has not ruled directly on whether counsel is
required in civil contempt proceedings. 243 However, at least seven federal circuit courts and the courts of approximately half the states have
held that appointed counsel is constitutionally required for indigent con241 See Joanna Ruppel, The Needfor a Benefit of the Doubt Standard in Credibility Evaluation of Asylum Applicants, 23 COLUM. HUM. RTs. L. REV. I (1992).
242 Walker v. McLain, 768 F.2d 1181, 1184 (10th Cir. 1985) (quoting Powell v. Alabama,
287 U.S. 45, 69 (1932».
243 Int'l Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994) (requiring a full
criminal trial for certain alleged civil contemnors, and deciding the case by characterizing the
proceedings as quasi-criminal).

2008]CIv1L CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGORl39

temnors threatened with coercive imprisonment. 244 Most of these cases
have involved indigent child support contemnors, and have focused on
the importance of counsel to reduce the risk of error in determinations of
ability to comply.245 They have rejected the notion that the issues involved in a civil contempt proceeding are simple and do not require the
assistance of a lawyer, pointing out that even in those cases where the
factual issues would be considered simple by a lawyer or judge, they are
far beyond the abilities of the indigent layperson to effectively present.246
The many cases in which indigent contemnors have been jailed despite
their inability to pay the required support247 evidence the inability of
these parties to effectively articulate a defense and present credible, relevant, and persuasive testimony. Their inability to speak the language of
the court is a large part of the reason that judges view their efforts to
defend themselves as "excuses," and afford them little credibility. The
right to counsel for indigent contemnors threatened with coercive incarceration should be legislatively or judicially recognized in every jurisdiction, preferably through a clarifying opinion of the U.S. Supreme Court.
The availability of appointed counsel standing alone does not ensure
full and fair consideration of the obligor's ability to pay. Appointed
counsels are often overburdened and unable to provide the needed level
of representation. Researchers who observed child support contempt
proceedings in several states reported, "In many of the courtrooms we
watched, these attorneys would call out their client's name as the courtroom filled with cases, meeting the client for the first time just prior to
the hearing."248 Reduction of the errors that lead to wrongful incarceration of civil contemnors requires that adequate state resources be devoted
to assuring that representation is meaningful. In addition, changes in
rules and procedures as noted above are needed to provide the attorney
with the tools necessary to obtain justice for low-income child support
obligors threatened with imprisonment.
244 See Marjorie A. Caner, Right to Appointment of Counsel in Contempt Proceedings, 32
A.L.R.5th 31, part II, § 3 (Cum. Supp.); see also McBride v. McBride, 431 S.E.2d 14, 19
(1993). Many courts have relied on the Supreme Court's statement in Lassiter v. Dep't of Soc.
Servs., 452 U.S. 18,25 (1981), that the indigent individual's interest in personal freedom is the
trigger for the right to appointed counsel. See, e.g., Black v. Div. Of Child Support Enforcement, 686 A.2d 164, 167-68 (Del. 1996).
245 "In making the determination of whether there is a deliberate defiance of the court
order, counsel is indispensable." Dube v. Patterson, 481 A.2d 1293, 1295 (Conn. Super. Ct.
1984).
246 [d.; Pasqua v. Council, 892 A.2d 663, 673 (N. J. 2006).
247 See, e.g., Carroll County Bur. of Support v. Brill, No. 05 CA 818, 2005 WL 3489763
(Ohio Ct. App. Dec. 15,2005) (finding appeal moot because sentence had already been completed); Evans v. Evans, No. 04AP-816, 04AP-1208, 2005 WL 2364976 (Ohio Ct. App. Sept.
27,2(05) (finding appeal moot because sentence had already been completed); see also supra
note 163.
248 MAY & ROULET, supra note 13, at 45.

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CONCLUSION

There can be no question that the child support enforcement program has proven an effective tool for improving the standard of living of
children in single-parent homes. Moreover, the program has also served
an important declaratory function by taking seriously the responsibility
of a biological parent for the children he or she brings into the world.
Integration of this notion into the financial life of the nation is itself a
valuable contribution to social policy.
However, the idea of child support orders and their vigorous enforcement as a means to a better life for the children of absent parents
has sometimes gotten ahead of the reality. Increasing the amount of a
child support award provides no benefit to the child if there is no prospect of payment. In fact, the child may be financially harmed if the overwhelmed parent, unable to pay all that is due, instead pays nothing.
Financial harm to the child also may occur if a parent is disabled from
providing support by the state's appropriation of an excessive portion of
his income to reimburse itself for welfare payments to the custodial
parent.
Likewise, harsh enforcement measures provide no benefit to the
child if the parent's lack of resources negates the possibility that the measure will result in payment. Harm to the child may result if enforcement
mechanisms such as license revocation or imprisonment-imposed on a
non-custodial parent who was paying what he could but not all that was
ordered-impair the parent's already limited earning capacity. The disconnect between the goals and effects of the child support program as
currently implemented demands a re-examination of the statutes, regulations, and practices that contribute to these anomalies.
In addition to the deleterious effects on the well-being of indigent
children, the programmatic problems in the child support enforcement
system have brought to the fore a long-ignored problem in the use of
imprisonment as a sanction for civil contempt. Acceptance of the lack of
procedural protections for contemnors facing coercive imprisonment has
been based on at least two false assumptions. The first is that there is no
need for procedural protections in civil contempt proceedings because
any resulting imprisonment is merely conditional, allowing the contemnor to secure his release at any time by meeting the purge condition. The
second is that the issues involved in civil contempt are simple, and do not
require procedural complexities to protect against aberrant fact-finding.
The Supreme Court rejected the first of these assumptions in
Bagwell, but left the second standing. The child support contempt cases
demonstrate that the second assumption is also fallacious-that the issues on which the civil contempt finding or the setting of the purge condition are based can be quite complex and difficult of proof. These cases

20081CIVIL CONTEMPT AND THE INDIGENT CHILD SUPPORT OBLIGOR 141

also have exposed the fallaciousness of the idea that process can be dispensed with when issues are simple. Child support contemnors have
been jailed even when the facts that would prevent this disposition have
been acknowledged by the judge. The danger of abuse of the broad discretion accorded the trial judge by current civil contempt law is not affected by the simplicity of the facts.
It may be that procedural protections should extend to all contempt
proceedings that can result in imprisonment, as many courts have held in
regard to the right to counsel. Whether or not this be the case, the need
for greater procedural regularity in child support contempt proceedings is
apparent. Flaws in the child support enforcement system create a substantial likelihood that an obligor charged with contempt may lack the
means to comply with either or both of the child support order and the
purge condition. The cases demonstrate a high risk that under current
procedures courts will err in making this determination. A full criminal
trial such as the Supreme Court required for the civil contemnors in
Bagwell may not be necessary. The procedural adjustments highlighted
in this Article are targeted toward some of the primary sources of error in
these cases and should form the core of any expansion of the due process
rights of child support contemnors. Their implementation would go far
toward reducing the risk that low-income child support obligors will continue to be incarcerated for the offense of being poor.