It is all too common that one parent doesn’t pay the child support obligation. The question becomes; “What can be done?” Tennessee courts have the power to punish for failure to comply with their orders. This comes down to contempt.
Civil contempt empowers the courts to use their powers in circumstances involving “the willful disobedience or resistance of any order….” TCA 29-9-102 (3). Our Supreme Court has explained elements of a successful civil contempt claim as follows:
First, the order must be “lawful.” Second, the order alleged to have violated must be clear, specific, and unambiguous. Third, the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order. Finally, the person’s violation of the order must be “willful.”
It is the “willful” part that these claims get argued. Typically, the parent having to pay will admit that they haven’t been paying the support obligation, but the argument will likely be that they can’t pay it for not having the ability to do so.
Upon a finding of civil contempt a court can imprison an individual to compel performance of a court order. This remedy is only available, however, when the parent owing the support has the ability to comply with the order at the time of the contempt hearing. If the contempt consists in omission to perform an act which the person has the power to perform, the person may be imprisoned until such person performs it. In that situation, it is said the person has the “keys to the jail” and can do away with the contempt by complying with the court’s order.
Now the burden will be on the person obligated to pay to show the inability to pay. When that person testifies under oath that he/she is without financial ability to conform there will be a hearing or trial to decide.
What is common is that the person owing the support cannot just use the argument that they quit their job or something in the like thereof. So, if that person has intentionally placed themselves in that position, that person will likely still be found to be in contempt. Now, it is only when that person has the ability to perform that he/she can be confined until they do perform. If he/she is wholly unable to perform, they can be punished only by fine not exceeding $50 or imprisonment for not more than 10 days, or both. (citing the criminal contempt statute).
If this is you or someone you know, an experienced family law attorney is required to help navigate through the legal procedures.
Cartwright Law, LLC