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Enforcement of Support Orders

April 2014

In 2012, a Maryland trial judge sentenced a father to 179 days of incarceration for failing to pay his court-ordered support. In addition to jail time, the father was ordered to pay back the support arrears and report to the court regarding his efforts to find full-time employment.  Yet, this sentence was entirely improper under Maryland law, and was reversed by the appellate court.

The purpose of a support order is to make sure that support payment, whether it is child support or spousal support (alimony), is paid on time and in the correct amount.  But, when the other party does not pay as directed, an enforcement action is necessary.   The enforcement action is called a “contempt proceeding”. 

In Maryland, there are two different classes of contempt proceedings.  The difference is basically in the purpose of the sanction. Criminal contempt proceedings are designed to address a person’s interactions with the Court and the punishment is punitive and intended to punish past disobedience with the court’s orders. On the other hand, civil contempt proceedings are designed to address a party’s interaction with another party and the nature of punishment is remedial and intended to force present or future compliance with the court’s orders.

Unfortunately for some, and fortunately for others, criminal contempt does not apply to enforcement of support proceedings because support orders involve private parties. A party will not immediately go to jail for making a late or deficient support payment. Rather, support enforcement falls under the category of civil contempt. Civil contempt is remedial, not punitive, in nature. As mentioned, it is intended to coerce private parties in a civil case to perform the act which they were ordered to do. In civil contempt proceedings, sanctions, like imprisonment, are conditional.  If a party is held in civil contempt, the court will determine if that party has the present ability to “purge” the contempt by immediately paying what is owed. If a party has a present ability to pay support, but fails to do so, then sanctions are imposed.  Essentially, a party held in contempt controls his or her own fate.

Although it may seem unfair that a party who did not pay the first time gets a second chance, there are good reasons. Suppose, for example, a party who was ordered by a court to pay support lost his or her job and was out of work and therefore unable to pay. To hold that person in contempt for failure to pay when he or she was unable to pay, and incarcerate that party, would not resolve the issue of non-payment. The justice system would prefer to see a party find a job and regain the ability to make payments, as opposed to sitting in jail accruing additional arrears. The “second chance” approach helps to stop the cycle of non-payment from continuing. 

In civil contempt proceedings, both sides have a specific burden of proof.  The party seeking enforcement of the support order must demonstrate clearly and convincingly that the other party has not paid.  If that can be done, then the party who has not paid can try to convince the court that (1) he or she did not have the ability to pay; (2) he or she tried to find work or a lawful way to make payments but was unsuccessful; or (3) more than 3 years have passed since the payment became due and therefore it no longer collectable.  If any of those three defenses cannot be proven successfully, the court is required to find the party in contempt.

A Contempt Order must specify the amount of the support arrearages, the sanction imposed, and how the sanction may be purged. When determining the sanction, the court must make a finding as to whether the person being held in contempt does or does not have the present ability to purge the contempt. If the court determines that the party in contempt has a present ability to pay the support arrears that day, but refuses to do so, then imprisonment is a permissible sanction. On the other hand, if the party does not have the present ability to pay, the court can issue other purge provisions, such as a repayment schedule for the arrears or mandatory job training or searches. If alternate purge provisions are ordered and the party still does not comply, sanctions are then imposed. Sanctions may include imprisonment or suspension of a driver’s or occupational license.  An attorney’s license to practice law may also be suspended for failure to pay child support.           

The example at the beginning of this article involved a recent Court of Special Appeals decision in Maryland.  In that case, the trial judge ordered a father to repay his child support arrearages or be sanctioned to 179 days incarceration. The problem was that the father was unemployed at the time of the contempt hearing and he did not have a present ability to pay his support arrears. Without that present ability to pay, there was nothing the father could immediately do to avoid incarceration. He had to go to jail, and stay there, until he had the means to pay off his support arrears. The appellate court said that the trial judge should have issued an order with which the father had the ability to comply, whether it was ordering him to undergo job training or make additional efforts towards finding employment. Instead, the court order was fashioned in such a way that the father had to go to jail that very day because he could not fulfill the purge provision, which is impermissible under Maryland law.        

If you are the party owed the support, it is important to know what your rights are in proceeding against the other party to obtain what is owed.  If you are the party obligated to pay support, it is important to know what types of sanctions may be imposed on you, and what you can do to keep that from happening.  If you have any questions regarding contempt, please contact Ferrier Stillman.  


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