by Attorney Sam Assini on July 29, 2011

The United States Supreme Court (hereinafter referred to as ‘the Court’) issued an opinion on June 20, 2011 in the case of Turner v. Rogers. The case originated in South Carolina, and found its way to the highest court in the land. The only issue that was before the Court was whether a payor (person responsible to pay child support under a court order) was entitled to an attorney at his civil contempt hearings. The hearings were held for Mr. Turner’s failure to pay his court ordered child support.

The Court’s decision not only answered this question but opened the door for the appointment of counsel in a number of other situations. This is a big win for all citizens ordered to pay child support. It is going to be interesting to see how the courts in Florida, as well as other states, attempt to safeguard the payors’ additional due process rights afforded them through this opinion.

In civil contempt proceedings in Florida the payor must be served with a motion that details the specific contemptuous behavior. The payor must be served with a proper notice of the hearing on the motion. The motion and notice must alert the payor to the fact that incarceration is a sanction the opposing party is seeking. The hearing must be attended by the payee (the person receiving child support). The payee must prove that there is a child support order in place. And that the payor is delinquent in his payments and the amount of the delinquency. The payor then has the burden of proving his inability to pay. There is a presumption of ability to pay when the child support order is entered because it is based on the child support guidelines and the current financial resources and income of both parents.

Once the testimony and proof is elicited from the payor and payee the court must issue an order that specifically details the amount that is delinquent, the payors ability to pay, where the money/property is to pay the amount that the court finds the payor has the ability to pay. If the payor refuses to pay what the court finds he has the present ability to pay the court could incarcerate him as a coercive measure to try to force payment. In other words, the payor has the keys to the jail cell in his pocket.

For example, the payor has a child support payment that is delinquent in the amount of $50.00. During the contempt hearing the payor testifies that he/she has $70.00 in his pocket. The court directs the payor to give the payee the $50.00 that is owed in back support. The payor refuses to pay the $50.00 to the payee. The court can order the payor be incarcerated until such time as the payor pays the purge, the $50.00 that is owed and currently in his pocket. The payor has the ability to pay but is refusing and defying the court’s order. The payor can get out of jail whenever he pleases; he simply has to pay from the funds that are in his pocket.

The above is a typical civil contempt proceeding. There is nothing procedurally wrong with incarcerating a parent who has the financial means to support his child readily available and refuses to pay. The court uses the sanction of incarceration as a coercive method to obtain payment from the payor. Children of the payor and payee need to eat, have a roof over their heads and have the basic necessities of life. Civil contempt is an important tool in the court’s arsenal to assure payment of much needed child support.

On the other hand, when the payor does not have the present ability to pay and the court seeks incarceration, as was the fact pattern in Turner, the court is using its’ power to punish. The Court found that proper safeguards were not in place to protect against Turner’s right to liberty and a fair hearing. The proceeding turned criminal in nature. Therefore, various other safeguards must be afforded, including counsel.

The Sixth Amendment to the United States Constitution affords a criminal defendant the right to counsel. Some criminal offenders do not receive the right to counsel, for instance a person who is at a hearing for violation of probation. The issue before the Court is similar in nature. The person on probation knows what responsibilities they have in order to stay out of jail as does the payor of child support. The cases have already been adjudicated and the supplemental proceedings are merely enforcement mechanisms. If you don’t comply with the order of the court there are ramifications. For the probationer that might be incarceration and for the payor as well, BUT only if the court has found that the payor has the present ability to pay and refuses to do so.

The 14th Amendment to the United States Constitution due process clause affords certain procedural safeguards in civil contempt proceedings. Civil contempt proceedings must be fundamentally fair. Freedom from bodily restraint is the core of the due process clause. The state may impose the burden of proving inability to pay on the payor and still be affording him these basic rights to due process.

From the record it appears that during much of the South Carolina proceedings Mr. Turner was suffering from drug addiction. Additionally, Mr. Turner was indigent. He was hauled into court on several occasions for his failure to pay the court ordered child support. The lower court on a number of occasions found Mr. Turner in contempt of court and ordered his incarceration. The last of these incarcerations was for twelve months. During his incarceration Mr. Turner obtained counsel and the litigation proceeded through the South Carolina courts, and culminating in the United States Supreme Court opinion.

Interestingly the issue before the Court was whether Mr. Turner should have received counsel when he attended the contempt proceedings in the lower court. The Court’s opinion went far beyond the issue that was raised and litigated in the lower courts. The dissent points out that the Court considered issues that were proposed in an amicus brief filed by the government. These additional issues were addressed in the Court’s opinion without giving the parties in the underlying case the ability to file briefs, or provide argument, regarding those specific issues.

Some may argue that this is a major setback to payors of child support. On its face you would think so. But that is not the case. The Court spelled out additional, specific safeguards that go far beyond what is the current civil contempt law in Florida. This is a huge win for persons caught up in a child support system that can’t seem to provide justice to any of the players involved.

The Court’s opinion left open several what ifs. What if the government is bringing an enforcement action? What if the payor is not afforded the opportunity to provide a financial affidavit prior to the hearing? What if the payor is not put on notice that the main issue he needs to prove at the hearing is inability to pay? What is the proper notice that must be afforded the payor regarding his inability to pay? What is a complex civil contempt case? What if the payee has representation?

First, when the government is seeking to have a payor found in contempt it usually initiates the proceeding to obtain reimbursement for welfare funds received by the custodial parent. The benefits received by the payee could be Medicaid insurance, food stamps, cash payments, or some other type of government assistance. The person who represents the state in the court proceeding is an experienced and learned attorney. These hearings were labeled by the Court as debt collection proceedings. They are held before a general magistrate and completed at a rapid pace. The payor shows up and is considered lucky if in the blink of an eye he is handed an order of contempt outlining arrears owed and how the arrears are to be repaid. If unlucky he is incarcerated.

Additionally, there are numerous payors waiting in the hall to get their day in court, it is their chance to explain why they cannot pay. But they face an experienced and learned attorney who prosecutes these cases day in and day out for a living. The payor is an innocent pawn, a goldfish waiting to be swallowed up by a hungry piranha. The reason the Court insinuated that the payor in these type of proceedings would need counsel is because these hearings are not fundamentally fair. That is because the state has a huge advantage.

Second, the Court opined that the payor would have to be provided with a financial affidavit of some sort to fill out prior to the hearing. How much time will the payor have to fill out the form? Who will be responsible to provide the form to the payor to fill out? What does the payor do with the form? Is the payor filling out this financial form under penalty of perjury? If 70% of the persons that are in arrears for child support earn ten thousand dollars or less per year, or have no earnings record at all. They are probably uneducated and would need legal assistance to properly fill out the form.

But, the financial form is a big win for the payors. The court will now have an affidavit in the lower court file for it to consider regarding present ability to pay. With that information before the court it will have firsthand knowledge of the payor’s present financial circumstances. The Court went on to opine that the lower court could illicit testimony from the payor regarding the information in the financial affidavit before the court finds no ability to pay on the face of the affidavit.

Third, the motion for contempt must put the payor on notice that his burden is to prove his inability to pay the child support as ordered. Remember the payor is a layperson who most likely won’t understand the legal meaning of ‘ability to pay’. The motion for contempt will need detailed language regarding the definition of ‘ability to pay’. This language will have to be something that a layperson can understand. Keep in mind, assets available to the payor could be used in some instances to prove ability to pay but the payor who is not represented by counsel would not have the knowledge of this as well.

Fourth, according to the Court’s decision the notice and motion must inform the payor that incarceration is a sanction that the court will consider at the contempt hearing. These sanctions are coercive in nature and not supposed to be a form of punishment for noncompliance with a child support order.

Fifth, the Court seems to allude to the fact that if the case is a ‘complex case’ then the payor should have representation by a trained advocate. What is a complex case? The average citizen that is caught up in the child support system does not understand the technical, legal and other jargon that surrounds such a proceeding. Every motion, notice, financial affidavit and their attendance at the hearing are ‘complex’ to them. When an individual is facing the sanction of incarceration the case is extremely ‘complex’ to that particular individual. The risk of deprivation of liberty increases with the ability of the individual in that particular case to understand what the proceedings are about.

Sixth, the Court suggests that counsel is appropriate for the payor if the payee has representation at the hearing. It appears that in order to level the playing field and afford the payor his due process rights of fundamental fairness he must be afforded counsel. This situation mimics the government having counsel when going after the payor for reimbursement of funds that were paid for government welfare. With an attorney representing the payor the playing field is leveled and the payor has a fair opportunity to present evidence of his inability to pay.

The payors rights at child support enforcement hearings have been protected by this opinion. There are a number of new hoops that the payee, or the government, will have to jump through in order to find the payor in willful contempt of the child support order should the court decide to use incarceration as a sanction. With a financial affidavit filed that shows little or no income, or assets, the court would be hard pressed to make written findings of fact that the payor has the present ability to pay.

Finally, we are left with more questions than answers with this opinion. I look forward to the lower court’s interpretation of the many issues it has raised. This opinion makes it significantly more difficult for the payees, and especially the government, to use incarceration as a sword to sever the basic constitutional rights of our indigent citizens. It is my opinion that this decision has enlarged basic due process rights in regards to civil contempt hearings for nonpayment of child support.