September 12, 2018 § Leave a comment
Inability to pay is often asserted as a defense in contempt actions. All too often, though, it fails for insufficient proof.
The burden of establishing inability to pay is on the one claiming the defense. It must be shown “with particularity, and not in general terms.” That is the phrase used by the MSSC in McIntosh v. DHS, 886 So.2d 721, 725 (Miss. 2004), in which the court said:
¶ 13. McIntosh contends that he lacked the financial capability to pay his support obligation. He relies upon our decision in Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), where we held that a husband may exonerate himself from failure to make alimony or child support payments because of his inability to pay. Yet while “a husband may exonerate himself from failure to make … child support payments as ordered, because of his inability to pay … his evidence must be made with particularity and not in general terms.” Id. at 278; see also Bailey v. Bailey, 724 So.2d 335, 337 (Miss.1998). In Hooker, the husband provided documents showing that his business and property had been foreclosed, that there were judgments for over $87,000 entered against him, [Fn omitted] and that he was unable to find employment. Hooker, 205 So.2d at 277. Such a dramatic change in circumstances was sufficient to protect Hooker from contempt of court. Id. at 278. [Fn 3]
[Fn 3] While a parent behind on child support payments may avoid contempt of court, they can never avoid the ultimate debt. For “[o]nce [child support rights] become vested, just as they cannot be contracted away by the parents, they cannot be modified or forgiven by the courts.” Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).
¶ 14. In contrast with Hooker, McIntosh provided no evidence of his inability to pay but merely described in general terms that he had no income or assets. McIntosh provided no medical records to support his alleged disability. He also provided no evidence to sustain his continued inability to seek employment. “Willful refusal to support one’s children is not the same as inability to pay.” Bailey, 724 So.2d at 337. Therefore, the chancery court did not err in finding McIntosh in contempt.
Financial difficulty does not constitute inability to pay. As Professor Bell points out, ” … [C]ontempt may be avoided only on proof that the payor lived economically, paid only bare living expenses, and used all remaining funds to satisfy the support obligation.” Bell on Mississippi Family Law, 2d Ed., § 14.05[a]. In Lane v. Lane, 850 So.2d 122, 125-126 (Miss. 2002), the court addressed the appellant’s proof at trial of inability to pay:
¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncontradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.
¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.
¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.
Notice the language ” … absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie … .” That’s what it takes to establish inability to pay.
As Jimmy Lane also learned in his unsuccessful trial and appeal, liability for other debts does not excuse non-payment of support. In the ancient case of Kincaid v. Kincaid, 213 Miss. 451, 466-467, 57 So.2d 263, 265 (1952), the court laid out the rule, which is still good law 66 years later:
In Amis on Divorce and Separation in Mississippi, Section 206, the rule is stated that a husband may not ask for modification of the original decree without showing that he has performed it or that its performance has been wholly impossible, and in Section 279 the author discusses the rules laid down in Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712 on which both parties here rely, and points out that if the husband undertakes to exonerate himself because of his inability to pay his proof must conform to those rules, namely: ‘That he earned all he could, that he lived economically and paid all surplus money above a living on the alimony decreed to the wife. And such proof must be made with particularity and not in general terms. In such a case he must show what his earnings were and what his living expense was, including that of those legally dependent on him, but not of any other person. The payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because the wife’s right to alimony is a prior and paramount claim on his earnings. Nor will the fact that his earnings were insufficient to support himself and pay alimony exonerate him if he has other money or property which he could sell or encumber to get money with which to make the payments, even though it may be exempt.’ See also Millis v. State, 106 Miss. 131, 63 So. 344, and Hamblin v. Hamblin, 107 Miss. 113, 65 So. 113. The foregoing views are not in conflict with what was said in Dickerson v. Horn, 210 Miss. 655, 50 So.2d 368, on which appellant relies and which case is clearly distinguishable from the case at bar.
Whether the obligation was child support or alimony, the rules for proving inability to pay are the same.
Keep in mind the US Supreme Court’s ruling in Turner v. Rodgers, about which I posted at this link. You must put the contempt defendant on notice that his ability to pay may be an issue at the hearing, and you must provide a template (such as an 8.05 form) for him to provide the information necessary to his defense. And the court must make a finding of ability to pay before imposing incarceration.
January 31, 2018 § Leave a comment
Amaria and David Vassar became embroiled in a divorce in 2015. Amaria was required by a temporary order to pay the mortgage notes on the marital residence that was jointly owned by them, but only Amaria was obligated on the note, apparently due to David’s poor credit history.
Instead of paying the note as ordered, Amaria quit paying it and cut off the utilities to the house. By the time of the final hearing, Amaria had amassed an arrearage in mortgage payments of nearly $13,000.
In his final ruling on the divorce issues, the chancellor found Amaria in civil contempt and ordered that she be incarcerated until she pay the arrearage. Six days later, Amaria filed a motion for release from jail on the basis that the proof at trial had shown she was unable to pay it. That motion appears to have been denied. Twenty-one days later, she obtained new counsel and filed yet another motion for release based on the same grounds and further informing the court that she had military orders to report for duty. The motion again was unsuccessful. Finally, after she had been incarcerated more than 40 days, Amaria filed for bankruptcy on the mortgage note, and the chancellor ordered her to be released.
On appeal, Amaria challenged the incarceration order as well as other aspects of the court’s ruling. In Vassar v. Vasar, an October 17, 2017, ruling, the COA reversed and remanded. Judge Wilson wrote the majority opinion:
¶47. Amaria also argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the marital home. Amaria does not contest the chancellor’s finding of contempt—only the order of incarceration. Amaria is no longer incarcerated. She was released after she spent forty-seven days in jail and filed for bankruptcy. Nonetheless, she argues that we should review the issue under the “capable of repetition yet evading review” exception to the mootness doctrine. We agree that the issue is appropriate to review and that the chancellor erred by incarcerating Amaria given her clear inability to purge herself of contempt by paying the mortgage arrearage.
¶48. “Inability to pay to avoid incarceration is a continuing defense as imprisonment does not accomplish the purpose of the civil contempt decree.” Riser v. Peterson, 566 So. 2d 210, 211 (Miss. 1990). In Riser, the Mississippi Supreme Court stated: “For the benefit of the bench and bar, let us attempt to state clearly that a litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but to the incarceration.” Id. at 212 (emphasis added; capitalization omitted).
¶49. Here, Amaria concedes that she was in contempt because she violated the chancery court’s temporary order requiring her to pay the mortgage and utilities on the marital home. Amaria’s only argument is that she should not have been incarcerated because the record is
clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage arrearage that the chancellor ordered her to pay as a condition of her release. We agree. Under Riser, even if inability to pay is not a defense to the underlying contempt, it is always a continuing defense to incarceration. The evidence was clear that on July 1, 2016, Amaria could not pay $12,997.65 or anything close to that amount. The chancellor therefore erred by ordering Amaria to be incarcerated until such time as she paid that amount.
¶50. Amaria’s release from jail after forty-seven days arguably renders moot her challenge to her incarceration. [Fn omitted] However, we may address an issue that is otherwise moot when “the following elements combine: (1) The challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration; and (2) There was a reasonable expectation that the same complaining party would be subject to the same action again.” Strong v. Bostick, 420 So. 2d 1356, 1359 (Miss. 1982) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975)). This is known as the “capable of repetition yet evading review” exception to the mootness doctrine. Id. The United States Supreme Court has applied this exception in a case in which a father challenged his incarceration for failure to pay child support but was released before his case reached the Court. See Turner v. Rogers, 564 U.S. 431, 439-41 (2011); see also Koestler v. Koestler, 976 So. 2d 372, 379-80 (¶¶19-23) (Miss. Ct. App. 2008) (holding that an appeal from an involuntary civil commitment fit within the exception even though the individual had been discharged).
¶51. Although the facts of Turner are distinguishable in some respects, we agree with Amaria that this exception to the mootness doctrine is applicable. Amaria remained in jail for forty-seven days until she was released for reasons that are not explained in the record. She was never able to comply with the originally stated condition for her release—payment of the mortgage arrearage. In addition, the final judgment imposed a series of financial obligations that were beyond her ability to pay. While we have reversed and remanded these obligations for reconsideration, it is appropriate to address the order of incarceration because it is capable of repetition in the future and could again result in a period of incarceration too short for full litigation of the issue.
Inability to pay, then, is both a defense to the finding of contempt, and to the sentence of incarceration. As to the latter, it is a continuing defense, meaning that it may be asserted as often as the condition persists, as Amaria did in this case. The US Supreme Court’s Turner v. Rogers case cited above, is instructive on how incarceration relates to inability to pay.
Only caveat is that the defense of inability to pay is ticklishly difficult to prove under existing Mississippi case law. Check out the many cases cited in Professor Bell’s book (2nd Ed.) at page 490, Fns 133-135. I suggest that the defense of inability vis a vis contempt demands stronger proof than the defense to incarceration or continued incarceration. I know of no Mississippi cases to support this assertion, but I think Turner v. Rogers supports it.
August 17, 2011 § 5 Comments
Ed McDonald filed for divorce from his wife, Cindy. Cindy counterclaimed for separate maintenance. The ultimate result was that the chancellor denied Ed a divorce and granted Cindy separate maintenance.
Ed did not pay as the court ordered, and he filed a motion to terminate the obligation. Cindy responded with a petition to hold Ed in contempt for non-payment of six months of separate maintenance. The chancellor rejected Ed’s plea to terminate the payments, found him in contempt, awarded Cindy a judgment for the arrearage, and ordered Ed to pay Cindy $1,000 in attorney’s fees based on the finding of contempt. In making the attorney fee award, the trial judge stated:
“The finding of contempt in this matter as to the separate maintenance payments permits the Court to require the party in contempt to pay reasonable attorney’s fees to the innocent party. The award is based on the contempt and not the inability to pay. Therefore, the Court orders [Ed] to pay $1,000 to [Cindy] as attorney’s fees for his failure to pay the monthly separate maintenance as ordered by this Court.”
Ed appealed both from the denial of termination of separate maintenance, and from the adjudication of contempt. In the case of McDonald v. McDonald, decided August 16, 2011, the COA affirmed the chancellor on the refusal to terminate separate maintenance and the adjudication of contempt.
Cindy, then, was the prevailing party in the appeal, and she asked the COA to award her an attorney’s fee for having to defend the appeal. Indeed, there is a long line of cases holding that the appellate court will award the prevailing party an appeal attorney’s fee in an amount equal to one-half that awarded by the trial judge. See, e.g., Quin v. Quin, 215 So.2d 414, 415 (Miss. 1968); Smith v. Smith, 293 So.2d 466, 469 (Miss. 1974); and Poole vs. Poole, 701 So.2d 813, 819 (Miss. 1997).
Based on the chancellor’s ruling on the attorney’s fee, Cindy would reasonably expect the COA to award her an attorney’s fee in the sum of $500 for prevailing in the appeal.
In this case, though, the COA brushed aside Cindy’s request with this language (at ¶17): “The chancellor specifically held that the attorney’s fees awarded to Cindy are based on the fact that Ed was in contempt ‘and not on the inability to pay.’ Because precedent dictates that attorney’s fees are based on ‘necessity and not entitlement,’ and the chancellor did not find that attorney’s fees awarded to Cindy were based on an inability to pay her attorney, we decline to award Cindy any attorney’s fees on appeal.”
The opinion cites Monroe v. Monroe, 745 So.2d 249, 253 (Miss. 1999) at ¶ 17, as authority for its statement that “attorney’s fees are based on necessity rather than entitlement.” Monroe is the only case cited by the court. Monroe was a divorce case in which the MSSC reversed and rendered on a finding that Mrs. Monroe had been denied alimony improperly. It was not a contempt case. The court found that Mrs. Monroe was not entitled to attorney’s fees on appeal because she did not prove inability to pay. I’ve posted here before about the necessity to prove inability to pay to support an award of attorney’s fees in non-contempt actions.
The rule is different in contempt actions, however. A finding of inability to pay is not necessary to an award of attorney’s fees in a contempt action. Bounds v. Bounds, 935 So.2d 407, 411 (Miss. App. 2006). It is not even necessary for the McKee factors to be proven in a contempt case. Mixon v. Mixon, 724 So.2d 956, 964 (Miss. App. 1998). Attorney’s fees are properly assessed against a party found to be in contempt, Mount v. Mount, 624 So.2d 1001, 1005 (Miss. 1993), to compensate the party wronged for having to retain counsel.
In Bounds, the COA spelled out the distinction:
Sam’s argument fails to differentiate awarding attorney’s fees in a divorce action as compared to a contempt action. In Mabus v. Mabus, 910 So.2d 486 (Miss.2005), the court addressed this issue. The trial court held a mother in contempt for failure to return the children to the father’s custody. Like Sam, the mother contended that the attorney’s fees the court awarded to the father for the contempt action were unreasonable because the court did not use the McKee factors. The general rule in divorce and child custody actions is that appropriate attorney’s fees should be awarded in an amount to secure a competent attorney. Id. at 490(13). However, in contempt actions, attorney’s fees are awarded “to make the plaintiff whole.” Id. (citing Rogers v. Rogers, 662 So.2d 1111, 1116 (Miss.1995)). “When a party is held in contempt for violating a valid judgment of the court, then attorney’s fees should be awarded to the party that has been forced to seek the court’s enforcement of its own judgment.” Elliott, 775 So.2d at 1290(25).
It looks to me like the chancellor in McDonald properly assessed attorney’s fees based on the sanction for contempt, as he was permitted to do under the great weight of authority. The chancellor was not required to find inability to pay. Why, then, was the customary appellate fee disallowed under a standard different than that which applied in the trial court? Ed appealed from the contempt finding and Cindy prevailed on the appeal. Should she not have been entitled to the customary one-half attorney fee award to the prevailing party?
I hope this decision does not mean that in contempt actions parties will have to put on proof of inability to pay purely in anticipation of an appeal, since that finding is not necessary for the trial judge to assess a fee on a finding of contempt. It’s irrational to me for one standard to apply at trial and another on appeal.
Cindy is only out $500 in this case, but what if the fees had been $12,500? Something else to think about as you go about making your trial court record in a contempt case.