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.