The Better Chancery Practice Blog

We talked about the US Supreme Court’s decision in Turner v. Rogers here. In essence, the case mandates in a contempt proceeding that the defendant or respondent be advised that ability to pay is a critical issue in the case, that he or she may use a form (e.g., 8.05 financial statement) to submit the proof, that he or she be afforded the opportunity to offer testimony and responses about ability to pay, and a finding by the court of ability to pay as a prerequisite to finding contempt.

So what exactly is it that a defendant has to show to establish inability to pay?

In Seghini v. Seghini, 42 So.3d 635, 643 (Miss. App. 2010), the court state the outline of the rule:

The court’s power to imprison a person until he complies with the terms of a decree depends on that person’s present ability to comply with the decree. Wilborn v. Wilborn, 258 So.2d 804, 805 (Miss.1972). “Where the contemnor is unable to pay, even if that present inability is due to his misconduct, imprisonment cannot accomplish the purpose of a civil contempt decree, which is to compel obedience.” Jones v. Hargrove, 516 So.2d 1354, 1358 (Miss.1987) (citing Miss. Const. art. 3, § 30). But the defendant has the burden of proving his inability to pay and must make such showing with particularity and not in general terms. Clements v. Young, 481 So.2d 263, 271 (Miss.1985).

In Seghini, the court rejected the claim of inability to pay on the basis that there was no independent corroboration. The defendant had prepared both the business ledger and the tax return upon which he based his defense (Note: I have posted here previously about the ineffectiveness of self-corroboration). Moreover, the proof showed that the defendant was often paid in cash, and that he had successfully paid a significant sum under the temporary judgment, his alleged inability having arisen only after the divorce judgment.

In Clements v. Young, cited above, the defendant offered no proof at all of inability to pay. In fact, his lawyer conceded on the record that his client had an ability to pay.

In Woodfin v. Woodfin, 26 So.3d 389, 393 (Miss. App. 2010), the court upheld a chancellor’s rejection of the defense on the basis that the defendant had failed to provide “particular evidence” of inability to pay. The decision states that it was his burden to prove inability to pay by clear and convincing evidence. The court went on to find affirmatively that he did have the ability to pay, based on his Rule 8.05 financial statement.

Inability to pay must be shown in particular terms. McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), Howard v. Howard, 913 So.2d 1030, 1036 (Miss. App. 2005)

In Howard, the court pointed out that when the defendant discovers his inability to comply with the court order, he must file a petition to modify immediately, and it is not appropriate to find him in contempt after he does so. See also, Setser v. Piazza, 644 So.2d 1211, 1216 (Miss. 1994). The prompt filing of a modification action, however, only precludes a finding of contempt, and does not excuse any arrearage. Thurman v. Thurman, 559 So.2d 1014, 1016-71 (Miss. 1990); Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss. 1990).

What constitutes particular proof of inability to pay will obviously depend on the facts of the case at hand. Assets available for liquidation should be taken in consideration. See, Doyle v. Doyle, 55 So.3d 1097, 1111-1112 (Miss. App. 2010). The fact that another resident of the household, such as a new spouse, is helping pay household expenses, would be a factor. And evidence that the defendant enjoys a standard of living inconsistent with inability to pay is persuasive.