SB 391 - This act codifies the common law remedy of civil contempt for failure to comply with child support orders. The remedy is available to parents represented by private attorneys or to the Family Support Division within the Department of Social Services. The contempt procedures are initiated by the obligee or the Division by filing an application for an order to show cause why the obligor should not be held in contempt. The obligor is defined as any person who owes a duty of support as determined by a court or administrative agency of competent jurisdiction.
The act sets forth the procedures and requirements with respect to the show cause hearings, evidentiary hearings, available remedies upon a finding of contempt, and the findings of fact and conclusions of law to be made by the court. Also, in order to secure the appearance of an obligor at the contempt proceedings, the court may issue a writ of body attachment if the obligor fails to appear after being duly notified. A writ of body attachment issued under this act shall be directed to a sheriff or other law enforcement agency and order a cash bond in an amount not to exceed the amount of arrearage.
A prima facie case for civil contempt is established when the party alleging contempt proves the obligor's obligation to pay a specific amount and the obligor's failure to make the payment. The obligor shall have the burden to prove by clear and convincing evidence that the failure to pay was not willful and contumacious. A rebuttable presumption that the obligor's failure to pay was willful and contumacious is created if the arrearage is proven to be equal to or greater than the sum of three months' support without regard to whether or not current support is still accruing.
Upon a finding of contempt, the court shall determine if the obligor has the present ability to pay towards the purge amount which is the amount set by the court that shall be paid in order to satisfy the judgment of contempt.
If the court finds that the obligor does not have the present ability to pay toward the purge amount, then the court may order the obligor to do one or more of the following:
(1) Pursue education or employment options;
(2) File for Social Security Administration benefits;
(3) File state and federal tax returns;
(4) Pursue other activities that may result in income or assets for the payment of support.
If the court finds that the obligor does have the present ability to pay toward the judgment of contempt, the court shall order a remedy or a combination of remedies, which may include committing the obligor to the county jail until a specified amount has been paid as determined by the purge plan ordered by the court. The purge plan is an order entered by the court after a finding of contempt that requires the obligor to make specific scheduled payments toward the purge amount and which payments may be lump sum, periodic, or a combination thereof. The purge plan shall state the amounts, the frequency and the due date for such payments. The act also set the maximum length of incarceration allowed pursuant to a judgment of contempt. The act also specifies the requirements as to any post-judgment review proceedings.