MAKING AN END RUN AROUND PIERCE
February 7, 2012 § Leave a comment
In Pierce v. Pierce, 42 So.3d 658 (Miss. App. 2010), the chancellor in a divorce had ordered the husband to pay the wife’s mortgage note until her child by a previous relationship graduated from high school. The COA remanded the case on other grounds, but instructed the chancellor not to tie the payment of the mortgage to any life event of the daughter, since she was not the payor’s offspring. In essence, the order amounted to an improper award of child support.
But what about where the child is the child of the payor? And what about where the payment is not any form of child support?
In Brooks v. Brooks, decided by the COA on December 13, 2011, the payor, Brandon, argued à la Pierce that the trial court had improperly converted payment of the mortgage note into additional child support when the judge tied Brandon’s obligation for mortgage payments to his youngest child’s attainment of the age of 18. He contended that the trial court’s actions were in violation of Pierce.
The COA rejected the argument that Pierce was applicable on the basis that there was no dispute that the child in question was his.
The court went beyond that point to add some significant language:
¶11. We cannot find that the mortgage payment was a form of additional child support. The award in the chancellor’s order was given under the heading, “Equitable Distribution,” and it was ordered after a discussion of the Ferguson factors. The chancellor ordered that when the house is sold, Brandon should receive 60% of the equity, and Dawn should receive 6 40%. The chancellor reasoned that “Brandon’s larger percentage will reflect his payment of debt, taxes[,] and hazard insurance over the next sixteen or so years . . . .” The upkeep and maintenance of the property are Dawn’s responsibility, except for repairs in excess of $1,000, which are the equal responsibility of both parties. Since the mortgage payment was part of the equitable distribution of the assets and Brandon will receive a portion of the equity back when the house is sold, the house payment is not the equivalent of child support. This issue is without merit.
The significance of this language is that it points a direction around Pierce via equitable distribution. If you can persuade your judge to consider mortgage payment as part of the equitable distribution, you can tie the payment to any life event of anyone. This can be helpful in a step-child situation as in Pierce itself, or where there are other child-related obligations not related to children of the parties. And just how do you pitch it? Offer the court through your client’s testimony a balance sheet showing your proposed equitable distribution. The judge might buy it.
CONTRACTING AWAY CHILD SUPPORT ARREARAGES
February 6, 2012 § 1 Comment
If you’ve practiced family law to any appreciable degree, you will recognize this vignette:
Your client, Charlene, has had no success in getting Ron, her deadbeat ex, to pay any child support. The contempt actions you filed just don’t seem to accomplish much except continuance after continuance based on unfulfilled promises and begging, compounded with Charlene’s tender-hearted reluctance to see “the father of my children” jailed.
Just when you’re about at the end of your rope, a ray of hope breaks through the darkness. Charlene sweeps into your office, elated that she and Ron have worked out a deal. Charlene is willing to forget the $17,000 that Ron owes for back child support if Ron will buy Junior a used Toyota pickup (with 136,000 miles) and commence paying current support.
You hastily draft a joint petition and agreed judgment, get the parties to sign, and track down your friendly local chancellor. Sign on the dotted line, judge, you say, and make this problem go away.
What do you think the judge will do? Surely he will approve this, since the parties have agreed, and it will clear up an continuing, chronic course of contumely.
But the judge says no, citing Tanner v. Roland, 598 So.2d 783 (Miss. 1992), in which the parties struck a similar deal, which the Mississippi Supreme Court found to be invalid. Citing Calton v. Calton, 485 So.2d 309, 310-311 (Miss. 1986), the court pointed out that “The child’s right to his parent’s support can not be bargained or contracted away by his parents.” The Tanner court said at page 786, “We have consistently held that child support payments vest in the child as they accrue. Once they have become vested, just as they cannot be contracted away by the parents, they can not be modified or forgiven by the courts.”
Interestingly, Tanner also resulted in the supreme court finding that a five-year-old judgment of that same trial court eliminating an arrearage was void. You just can not do away with a vested arrearage.
Since the Tanner case, the Mississippi legislature created an exception for fathers whose parentage is disestablished. You can read about that statute here.
There is also the situation recognized in Varner v. Varner, in which the court may deem child support to have been “paid” to or for the benefit of the child when the child comes to live with the paying parent for a time by agreement of the parties. The theory is that it would create an unjust enrichment for the parent who did not have the child during that time. In such a case, the trial court still may not forgive the arrearage, but may only declare it to have been “paid” to for for the benefit of the child.
It is the Tanner-Calton line of cases that convinces me that it is improper for parents to contract away the right to future support at all in a property settlement agreement. I’m talking about language to the effect that neither party shall pay child support to the other, or that each party will support the child when the child is with him or her. Is that not bargaining or contracting away the child’s right to support as prescribed by Calton? I believe it is.
A contract to do away with child support is invalid and unenforceable. Even if you skate it past your chancellor, you will face reversal on appeal.
ANOTHER ASPECT OF IMPUTED INCOME
December 20, 2011 § Leave a comment
We’ve discussed imputed income here before. In essence, income can be imputed where the payor claims reduced income or incapacity in certain situations.
Another situation for imputed income arises where the judge finds that the payor has greater income than is reported on the financial statement and in the testimony. Such was the case in Brooks v. Brooks, decided by the COA on December 13, 2011.
In Brooks, at ¶ 9, the COA upheld the trial court’s decision not to accept the husband’s testimony about his income. The husband, Brandon, was a self-employed attorney who reported fluctuating income. The chancellor relied on Brandon’s 2007 income tax return to determine income because that was the only tax return he provided; he did not offer his 2008 or 2009 returns into evidence. In the absence of the two subsequent returns, the COA ruled, it was reasonable for the court to rely on and draw conclusions from the information submitted.
Brandon also contended that his income was insufficient to pay alimony to his former wife, Dawn, in the amount ordered, but the COA rejected that argument, at ¶ 22:
The chancellor found that Dawn could not meet her expenses without assistance from Brandon. Even working part time, she would not be able to meet her obligations. Further, we agree with the chancellor’s finding that Brandon failed to show evidence that he was unable to pay alimony. In awarding the alimony, the chancellor noted:
“. . . Brandon, who has been paying the court-ordered support since June 22, 2009, has been able to pay support to Dawn in the amount of $250 per week, plus the house note, plus household expenses, without any increase in debt. Exhibit 2 shows debt only for the home mortgage, a car note for a vehicle Brandon purchased after the separation, and a student loan. Since neither party has reported any sizeable cash on hand, it is obvious that Brandon could manage to pay Dawn’s support from either of only two sources: current income; or newly-acquired debt. Since he reports no new debt the conclusion is inescapable that Brandon has been paying Dawn from current income, and that he is managing to pay his other expenses in like manner. In addition, Brandon testified at trial that he would be willing to pay the house note for Dawn and the children’s benefit if he could have extra visitation, which the court finds to be a curious position for a person who claims to be unable to meet his expenses with the amount of income he has.”
From the payor’s standpoint, the more accurate and credible evidence you offer the court to establish income, the better off your client will be. Explain and document discrepancies and inconsistences, or run the risk that the court will construe them against your client.
From the recipient’s standpoint, attack income information and don’t take it at face value. You might persuade the judge to find that there is more income there than is being reported.
IMPUTING INCOME
November 28, 2011 § 1 Comment
In these unsettled economic times, it’s a fairly common phenomenon that the party who will be ordered to pay child support is working a reduced schedule, or has taken a job with a significant pay cut, or has lost employment. The paying parent wants child support set at the low rate, and the recipient parent wants the court to consider earning capacity.
The law is that “income will be imputed to a child support payor who, in bad faith, voluntarily worsens his financial position.” Howard v. Howard, 968 So.2d 961, 972 (Miss. App. 2007). “[A]n obligor’s financial position cannot be voluntarily worsened in an attempt to lessen his [or her] child support obligation.” Swiderski v. Swiderski, 18 So.3d 280, 286 (Miss. App. 2009). Where a chancellor is not convinced of the honesty or veracity of the parent concerning the parent’s ability to abide by his or her financial obligations, the chancellor is not precluded from factoring this skepticism in the equation when determining the amount of the child support award. Dunn v. Dunn, 695 So.2d 1152, 1156-57 (Miss.1997); see also Grogan v. Grogan, 641 So.2d 734, 741 (Miss.1994). Furthermore, “[t]he chancellor can base child support on the parent’s potential earning capacity.” Suber v. Suber, 936 So.2d 945, 949 (Miss. App. 2006); White v. White, 722 So.2d 731, 734 (Miss. App. 1998).
The key elements are bad faith and voluntariness. Bad faith involves an intent to evade one’s obligation, whether voluntarily or not. For example, it is unquestionably bad faith to ask for a job assignment that will reduce pay; that is voluntary. It is also bad faith to take a job assignment that one knows will lead to a reduction in hours or pay, even though someone else will make the pay-cut decision; that may not appear voluntary, but the intent is to place oneself in a position to evade the obligation via someone else’s decision. Voluntariness, of course, is evident from the facts.
In the case of Wells v. Wells, 35 So.3d 1250, 1260 (Miss. App. 2010), the COA rejected the custodial father’s argument that income should be imputed to the mother, finding no evidence that the mother had reduced her work hours in bad faith to reduce her child-support obligation. The chancellor had found that the mother’s intent in reducing her work hours was to spend more time with the children. The COA also pointed out that the chancellor’s decision whether or not to impute income is discretionary.
CALCULATING CHILD SUPPORT FOR OUTSIDE CHILDREN
November 8, 2011 § Leave a comment
MCA § 43-19-101 is the statute that prescribes the formula for calculating child support. I’ll leave it to you to re-read it (or to actually read it for the first time, if you’ve never bothered). I do suggest you read it, because from the questions I get about the statute, it’s clear that not all of you have done so.
There are two provisions in the statute that deal with how to consider child support for the payor’s other children:
- § 43-19-101 (3)(c) provides that any amounts due for prior court-ordered child-support for other children must first be deducted.
- § 43-19-101 (3)(d) provides that if the payor is parent of other children who live with him, and there is no other court order for the other children who live with him, the chancellor may deduct an amount “appropriate to account for the needs” of the other children who live with him.
The statute does not address the situation that arises when the payor has other children who do not live with him, and for whom there is no court-ordered child support. That was the situation that presented itself in Knighten v. Hooper, handed down by the COA on September 6, 2011.
Hooper and Knighten lived together for a brief time, and their relationship produced a son, CJ. After CJ was born, Knighten had relationships with two different women that resulted in three children.
Hooper sued Knighten for for child support for CJ. After a hearing on the matter, the chancellor ruled that neither party had overcome the presumption that the statutory child support guidelines were applicable. She calculated that guideline child support for CJ should be 14% of Knighten’s adjusted gross income, or $526.21. The chancellor went on to say that, ” [t]he court does consider that Mr. Knighten has three other minor children that he has to provide for … The court further considers all other factors and finds that it is reasonable for Mr. Knighten to pay … $400 per month.”
Knighten appealed, complaining that the chancellor had failed to make findings of fact sufficient to support the reduction of child support. Reading between the lines, it appears that he felt that the reduction for the outside children should have been greater than the 24% of adjusted gross income that the chancellor allowed.
The COA found no error in the chancellor’s approach. The court noted that the two statutory deductions for other children did not apply, and then stated, beginning at ¶ 11:
“Although the deductions did not apply, the chancellor decided that it was equitable to consider Knighten’s other children. Chancellors may deviate from the child-support guidelines if they determine, in writing, that application of the guidelines would be unjust or inappropriate in the particular case. Miss. Code Ann. § 43-19-101(2). When deciding whether a deviation is appropriate, chancellors may take into account, among other things: “[a]ny . . . adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.” Miss. Code Ann. § 43-19-103(i) (Rev. 2009).
¶12. Here, the chancellor wrote that “[t]he Court does consider that Mr. Knighten has three other minor children that he has to provide for . . . . The Court further considers all other factors and finds that it is reasonable for Mr. Knighten to pay . . . . $400 per month.” Thus, the chancellor determined, in writing, that a deviation from the guidelines was appropriate based on a reasonable and necessary existing expense – namely, Knighten’s obligation to support his other children.
¶13. Knighten correctly argues that the chancellor did not explain in detail how she settled on the precise amount of $400. However, he cites no authority that supports his proposition that such a detailed explanation was required. The chancellor was faced with great uncertainty in this case. Given the informal arrangement Knighten had with the mothers of his other children, it was unclear exactly how much Knighten paid to support the children. When there is no court-ordered child support for the other children, there will inevitably be uncertainty in this regard. In light of that uncertainty, chancellors must be afforded flexibility and discretion so that they may do equity under the circumstances.
¶14. The chancellor, in her discretion, determined that a downward deviation in the amount of $126.12 per month was appropriate and equitable in light of Knighten’s obligations to his other children. We find that the chancellor’s decision was within her discretion. This issue is without merit.”
In a footnote, the court declined to consider whether later-born children are entitled to any consideration in calculation of child support for earlier born children. Some jurisdictions take the position that payors should not be allowed to place the first-born children at a financial disadvantage by continuing to procreate.
The opinion seems to imply that it was doubtful whether Knighten was actually paying any support for the three after-born children. In that situation, any reduction would be a direct benefit to him and not to the children. The chancellor was obviously conflicted about what the COA described as this “uncertain” situation. The COA afforded her the flexibility and discretion she needed to address it.
UCCR 8.06 ON STEROIDS
October 25, 2011 § 7 Comments
Unless you’ve been practicing law under a rock for the past umpteen years, you are surely aware of the requirements of UCCR 8.06. That’s the rule that mandates filing each party’s name address and telephone number with the chancery clerk, with service on the other party, in every action involving custody of children, and within five days of any change.
Did you know that there is a statutory counterpart to UCCR 8.06 that requires even more detailed information in paternity and child support cases?
MCA § 93-11-65 (5) now provides that:
Each party to a paternity or child support proceeding shall notify the other within five (5) days after any change of address. In addition, the noncustodial and custodial parent shall file and update, with the court and the state registry, information on that party’s location and identity, including social security number, residential and mailing addresses, telephone numbers, photograph, driver’s license number, and name, address and telephone number of the party’s employer. This information shall be required on entry of an order or within five (5) days of a change of address.
This provision is not limited to DHS actions for support. In my opinion, it applies in all cases where there is a provision for child support, including irreconcilable differences divorces. You should see to it that this is addressed in your property settlement agreements and judgments.
AGREEING TO FOREGO CHILD SUPPORT
September 6, 2011 § 5 Comments
We’ve talked here before about forgiving child support arrearages. In a nutshell, the law is that the court can not order a reduction or forgiveness in child support arrearage except in the case where the father’s parentage of the child is subsequently disproved by DNA testing. In such a case, the statute permits the trial court to remit the arrearage to prevent an unjust enrichment.
What about the situation where the parents agree to forego child support altogether? Should the court approve it? Here’s a scenario:
R.C. and Esther obtain an irreconcilable differences divorce in which R.C. agrees to pay Esther $30 a week for child support. Later, however, R.C. and Esther into an extra-judicial agreement in which R.C. conveys his interest in a home to Esther and agrees to pay the mortgage debt; in consideration, Esther signs a “Covenant not to Sue” by which she agrees not to sue R.C. for the child support ordered. Esther ignored the agreement and sued R.C. for contempt when he paid the mortgage instead of the child support. The chancellor found the “Covenant not to Sue” unenforceable, and adjudged R.C. to be in contempt.
Confronted with these facts in the case of Calton v. Calton, 485 So.2d 309, 310 (Miss. 1986), the Mississippi Supreme Court stated:
… this jurisdiction has held that a child support judgment is awarded to the custodial parent for the benefit and protection of the minor child, the underlying principle being the legal duty owed to the child for the child’s maintenance and best interest. Wilson v. Wilson, 464 So.2d 496 (Miss. 1985), Hailey v. Holden, 457 So.2d 947 (Miss. 1984). There is a fiduciary duty owed to the child by the custodial parent. Wilson, supra, Trunzler v. Trunzler, 431 So.2d 1115, 1116 (Miss. 1983). The duty to support children is a continuing duty on both parents and is a vested right of the child. Wilson, supra, Simpson v. Rast, 258 so.2d 233 (Miss. 1972).
The court held that the parties’ agreement was unenforceable as against public policy.
As for the extra-judicial agreement, the court said at page 311 that “Further, the parents cannot by contract alter a court judgment entered for the benefit of a minor, for only the court granting such judgment can alter such a judgment.”
Aside from its obvious and express holding, Calton is a major component in my reluctance to approve agreements that provide that “Husband shall support the child when the child is with him, and Wife shall support the child when he is with her.” That kind of agreement, in my opinion, leaves open the question whether the parents are indeed fulfilling their fiduciary duty to the best interest of the child.
EMANCIPATION TODAY
August 22, 2011 § 9 Comments
Emancipation occurs when a child has attained a status in which he or she is no longer entitled to parental support and control. The law of emancipation has undergone many changes in the last few decades.
MCA § 93-11-65 (8) now sets out the statutory bases for an adjudication of emancipation. There are two categories of emancipation. Category One requires a finding of emancipation upon the occurrence of any of the enumerated facts. Category Two cases allow the court in its discretion to find emancipation on proof of any of the enumerated facts.
Category One. Unless otherwise provided for in the underlying child support judgment, emancipation shall occur when the child:
- Attains 21 years of age, or
- Marries, or
- Joins the military and serves full-time, or
- Is convicted of a felony and sentenced to two years or more.
Category Two. The court may determine that emancipation has occurred, unless otherwise provided in the underlying child support judgment, if the court finds that the child:
- Has attained the age of 18 years and has discontinued full-time enrollment in school, unless the child is disabled, or
- Voluntarily moved from the home of the custodial parent or guardian, establishes independent living arrangements, obtains full-time employment and discontinues educational endeavors before reaching the age of 21, or
- Cohabits with another person without approval of the parent obligated to pay child support.
The statute also provides that child support for an unemancipated child who is incarcerated is suspended during the period of incarceration.
In Caldwell v. Caldwell, 579 So.2d 543, 549 (Miss. 1991), the court stated:
Emancipation, as employed in the law of parent and child, means the freeing of a child for all the period of its minority from the care, custody, control, and service of its parents; the relinquishment of parental control, conferring on the child the right to its own earnings and terminating the parent’s legal obligation to support it.
In the case of Rennie v. Rennie, 718 So.2d 1091, 1094 (Miss. 1998), the MSSC stated that the statute enlarges, but does not diminish, the Caldwell definition. In other words, the courts are not limited to the statutory language in determining emancipation. Putting the Caldwell definition together with the statute, it appears that the court has discretion to find that proof of emancipation facts under Category Two will not necessarily emancipate the child if the court determines that the child’s situation does not satisfy the Caldwell definition of emancipation. On the other hand, the trial court has no discretion under the Category One facts.
The Rennie court also announced the rule that the child gets “one bite of the apple,” and that a child once emancipated may not be unemancipated once the conditions that gave rise to the emancipation no longer exist. See also, Crow v. Crow, 662 So.2d 1226, 1228-30 (Miss. 1993).
It is the child support payor’s duty to bring the issue of emancipation to the attention of the court. Strack v. Sticklin, 959 So.2d 1, 6 (Miss. App. 2006). When the payor fails or delays in seeking relief from the court, as opposed to self-help, the decision whether to make the emancipation retroactive is left to the judge’s discretion. Houck v. Houck, 812 So.2d 1139, 1143 (Miss. App. 2002). But note that emancipation of one or more children does not necessarily reduce child support where the child support obligation is “global” rather than a sum per child. Wiles v. Williams, 845 So.2d 709, 711-12 (Miss. App. 2003).
The language of the statute “Unless otherwise provided in the underlying child support judgment” is recognition of case law that provides that the parties may extend emancipation or provide other emancipation triggers by agreement. A typical example is where they agree that “college and child support shall continue until the child attains a bachelor’s degree or age 23, whichever occurs first.” The statutory language raises the question whether the court, without an agreement of the parties, could extend the Category One emancipation triggers in an adjudication of child support. I think not, given the shall language of Category One. But what about where the parties agree, in a consent for example, that the court will adjudicate the extent and duration of child support? An intriguing question, and I am not aware of any case law one way or the other.
Q & A ON SOCIAL SECURITY’S INTERACTION WITH CHILD SUPPORT
June 28, 2011 § 2 Comments
Q: Father’s child support obligation is $300 a month, and the child begins receiving $250 a month from social security due to the father’s disability. What is the effect of social security on the father’s obligation?
A: The father is entitled to a credit up to the amount of his support obligation. Mooneyham v. Mooneyham, 420 So.2d 1072, 1074 (Miss. 1982). In this case, since the social security benefit is less than the support obligation, the father will receive credit for the $250 social security payment and will owe the $50 monthly difference.
Q: Father’s child support obligation is $300 a month, and the child begins receiving $350 from social security due to the father’s disability. What is the effect of social security on the father’s obligation?
A: The father is entitled to a credit up to the amount of his support obligation, and any amount in excess is a gratuity to the child. Mooneyham at 1074.
Q: Father’s child support obligation is $300 a month, and the child begins receiving $350 from supplemental security income (SSI) due to the child’s disability. What is the effect of the SSI on the father’s obligation?
A: None. Receipt by the child of SSI payments does not reduce the parental support obligation. Hammett v. Woods, 602 So.2d 825, 828 (Miss. 1992). The same result should apply to any form of benefit received by the child that is generated by the the child or someone other than the child-support-obligated parent.
An interesting twist on this principle appeared in the case of Bradley v. Holmes, 561 So.2d 1034 (Miss. 1990). The father began receiving social security and requested the mother to file for the child to receive benefits on his account. The mother instead filed for and received benefits for the child through the child’s step-father’s account because the benefits were higher. The father petitoned the court to eliminate his child support payments because the mother could have used his account to pay the support, but she elected to use another’s entitlement. The supreme court agreed an held that the father’s obligation was extinguished because the step-father-derived benefits exceeded the amount of the father’s child support obligation.
Q: Father has an arrearage in child support in the sum of $2,000 that accrued after his disability date, and the child receives a lump-sum payment from social security based on the father’s disability. What is the effect of the lump sum payment on the father’s obligation?
A: Chapman v. Ward, 3 So.3d 790, 799 (Miss. App. 2009), and Keith v. Purvis, 982 So.2d 1033, 1038 (Miss. App. 2008), addressed this issue. Read in combination, they appear to hold that the father may have no credit, but the legislature might have altered that rule. Here is what the legislative drafting office provided us at the Judges’ Spring Conference about an amendment to MCA § 93-11-71, to take effect July 1, 2011: “Section 93-11-71 is further amended to provide that the parent who is in arrears on child support payments and who receives Social Security Disability insurance benefits for the support of that child or children will receive credit on the arrearage if it accrued after the date of the disability.” Rooting that principle out of the chapter laws, or even the express language upon which the statement might be based, has been an insuperable challenge for me so far, so I will withhold a categorical statement as to what the new law might provide, so I will withhold jumping in until I receive my advance sheets. In the meantime, if you have this issue come up after July 1, I urge you to do your own research to protect your client’s interests.
Q: Father has an arrearage in child support in the sum of $2,000 that accrued before his disability date, and the child receives a lump-sum payment from social security based on father’s disability. What is the effect of the lump sum payment on the father’s obligation?
A: It would appear both from the case law and the revised statute that the father has no protection or relief in this circumstance.
TURNER v. ROGERS DECONSTRUCTED
June 22, 2011 § 4 Comments
By Ben McMurtray
Yesterday the United States Supreme Court handed down its decision in the case of Turner v. Rogers. The question before the court was whether a respondent in a civil contempt proceeding, namely someone who was being threatened with jail time for failure to pay child support, has a right to have counsel provided to him. The Court held that “the Due Process Clause does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual who is subject to a child support order, even if that individual faces incarceration (for up to a year).” The Court went on to hold that “in particular, that Clause does not require the provision of counsel where the opposing parent or other custodian (to whom support funds are owed) is not represented by counsel and the State provides alternative procedural safeguards. . . .”
The practical effect of this ruling has actually very little to do with the right to counsel. Instead, the focus of the courts and attorneys should be on the “alternative procedural safeguards” mentioned by the Court. The Supreme Court identified four such safeguards in its opinion, which, if employed together, can “significantly reduce the risk of an erroneous deprivation of liberty” and therefore negate the need to appoint counsel to an indigent civil defendant. These safeguards are:
- Notice to the Defendant that his “ability to pay” (the child support) is a critical issue in the contempt proceeding;
- The use of a form (or the equivalent) to elicit relevant financial information;
- An opportunity at the hearing for the defendant to respond to statements and questions about his financial status (e.g., those triggered by his responses on the form);
- An express finding by the court that the defendant has the ability to pay (before finding him in contempt).
This list is not inclusive of all possible safeguards that a state could employ. In fact, the Court stated that past cases “suggest . . . that sometimes assistance other than purely legal assistance (here, say, that of a neutral social worker) can prove constitutionally sufficient.”
Turner, though, is quite limited in its scope. The Court does not address several potential situations in this ruling, so the issue of whether counsel should be provided to indigent civil defendants is far from dead. The Court did not say whether counsel should be provided when the party seeking the child support is represented by an attorney. Instead, it was quite careful to limit the opinion to cases where the person seeking the child support was also represented pro se. Furthermore, the Court explicitly held that this opinion does “not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.” Also, the Court did not address what due process requires in an “unusually complex” case where a defendant “can fairly be represented only by a trained advocate.” In each of these instances, the holding suggests that the Court would be far more likely to hold that an attorney must be provided to an indigent civil defendant if the other side is represented by counsel.
So how does Turner v. Rogers affect one’s practice? When a defendant is served with process in a child support action, just include something telling him that his ability to pay is an issue at the hearing. Go ahead and attach some kind of a financial disclosure form too so that the court has all the information it needs to determine if the defendant is able to pay. Make sure the defendant has a chance to talk about his financial statement and any testimony deriving therefrom during his hearing. Finally if the court finds him in contempt, ensure that the judge makes a finding that the defendant has the ability to pay.
[Ben McMurtray is an Ole Miss law student who served as an intern in the 12th District this summer. His internship has involved learning about the inner workings of the courts, how lawyers operate out here in the real world, and how different judges handle things. He has observed trials, docket calls, motion hearings, chamber conferences and probate matters in Lauderdale and Clarke Counties, and he has sat in with Judge Clark in Scott County and Judge Fenwick in Neshoba. He even sat at defense counsel’s table in a rape trial in Lauderdale Circuit in which the defendant was acquitted. He observed an adjudicatory hearing in Lauderdale Youth Court. He has helped inventory the probate docket in Clarke County. This is his last week, and we will miss him when he is gone, but we wish him the best in the rest of law school and his legal career.]
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