“The problem is, chronic non-supporters do not have dependable jobs, nor tax refunds, nor seizeable property. That’s why they are chronic. . . . As cruel as it sounds, the one remedy that almost always works is incarceration. We family court judges call it ‘the magic fountain.’ . . . Of course, there is no magic. The money is paid by his mother, or by the second wife, or by some other innocent who perhaps had to liquidate her life’s savings.” Family Court Judge L. Mendel Rivers, Jr., “The Magic Fountain,” Post and Courier, Charleston, S.C., June 27, 1992, p. 15A.
Like most states, South Carolina uses civil contempt to enforce its child support and alimony orders. When support is paid through the family court, a family court bookkeeper actually issues and processes the contempt hearings (“rules to show cause”) and sometimes a dozen hearings will take place within an hour, which is why these hearings are sarcastically referred to as “daddy round-ups.” Typically, unless the payor shows a complete inability to pay the ordered support the court will, under a civil contempt finding, sentence him or her to three, six or twelve months of incarceration until one-third, one-half or all of the out-of-compliance amount is paid (the length of the sentence and the percentage that needs to be paid to be released depends greatly on the payor’s past payment history and the mood of the judge). The court rarely expects the payor him or herself to be able to come up with the funds necessary to end the incarceration. Instead, the hope is that this “magic fountain” will spill forth funds. The court’s other goal may be to punish the payor for his or her delinquent payments.
Such uses of civil contempt are almost certainly improper. Persons charged with civil contempt “carry the keys of their prison in their own pockets.”Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86, 89 (1998). In other words, the contemnor should be able to comply with the contempt order if the contempt order is in the nature of civil contempt.
Case law and court rules from other states note than when a non-custodial parent has failed to pay child support, the proper sanction is to have them pay all that they can immediately pay and then put them on a payment plan on the arrears. See e.g In Re Marriage of Hartt, 43 Colo. App. 335, 609 P.2d 970 (1979) (“the trial court must make findings both of the facts constituting the underlying contempt and that the contemnor has the present duty and ability to purge himself of contempt at the time of the entry of the remedial order”); see also In re Marriage of Crowley, 663 P.2d. 267 (Colo. App. 1983); Bryant v. Bryant, 228 Conn. 630, 637 A.2d 1111 (1994).
A case from Georgia is almost exactly on point. In Hughes v. Department of Human Resources, 269 Ga. 587, 502 S.E.2d. 233 (1998) the Georgia Department of Human Resources filed a petition for contempt against Hughes for his failure to pay child support. The trial court found Hughes in willful contempt for failing to make payments of $100.00 per week and that his arrearage totaled over $31,000.00. The trial court ordered Hughes incarcerated, but provided that Hughes could purge himself by paying $19,860.10 and $85.00 in court costs.
Almost two months later, Hughes filed a petition for release from incarceration, alleging that he did not have funds or property with which to pay the amount required. At a hearing on his petition, the evidence showed that Hughes had no money or property. Before his incarceration he had employment paying $10.00 per hour and his employer offered to pay $500.00 towards the arrearage if Hughes were released. The trial court found that Hughes had no means by which to pay the arrearage, but that incarceration was warranted because Hughes had allowed his support obligation to accrue for six years.
The Georgia Supreme Court reversed the trial court and ordered Hughes released from incarceration, holding:
A party who has failed to pay support under a court order when he has the ability to pay may be found guilty of civil or criminal contempt and incarcerated under either. When the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil. Because the trial court ordered Hughes’ incarceration until he paid $19,945.10, the contempt in this case was civil in nature.
A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. As we have long held, “[t]he moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party.” Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court’s orders, the justification for imprisonment is lost when that compliance is impossible. The trial court found and DHR admits that Hughes lacks the ability to purge himself because he lacks money and property and his only source of income is manual labor. Under these circumstances, the trial court abused its discretion in continuing Hughes’ incarceration for civil contempt.
Florida had so many fathers successfully petitioning the appellate courts for writs of habeas corpus when the lower court found them in civil contempt for child support and required them to pay all arrears to be released from incarceration that, in 1998, it implemented Family Court Rule of Procedure 12.615, which holds in part:
(e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. The court may grant the contemnor a reasonable time to comply with the purge conditions. If the court orders incarceration but defers incarceration for more than 48 hours to allow the contemnor a reasonable time to comply with the purge conditions, and the contemnor fails to comply within the time provided, the movant shall file an affidavit of noncompliance with the court. If payment is being made through the Central Governmental Depository, a certificate from the depository shall be attached to the affidavit. The court then may issue a writ of bodily attachment. Upon incarceration, the contemnor must be brought immediately before the court within 48 hours for a determination of whether the contemnor continues to have the present ability to pay the purge.
(f) Review after Incarceration. Notwithstanding the provisions of this rule, at any time after a contemnor is incarcerated, the court on its own motion or motion of any party may review the contemnor’s present ability to comply with the purge condition and the duration of incarceration and modify any prior orders.
Almost every state in the Southeast had determined that it is improper to hold a delinquent parent in jail if he or she lacks the capacity to pay the full amount owed. Ex parte Talbert, 419 So. 2d 240, 241 (Ala. Civ. App. 1982); Lynch v. Lynch, 342 Md. 509, 521, 677 A.2d 584, 590 (1996); Lee v. Lee, 78 N.C.App. 632, 337 S.E.2d 690 (1985); McMiller v. McMiller, 77 N.C.App. 808, 336 S.E.2d 134 (1985); Ex parte Rojo, 925 S.W.2d 654, 656 (Tex. 1996).
Finally, imprisoning a contemnor for failure to pay a support debt based merely upon a finding of civil contempt, when he or she lacks the current ability to pay the full amount of the support arrearage, may violate S.C. Const. Art. I, § 19, which states “No person shall be imprisoned for debt except in cases of fraud.” Imprisonment based on a criminal conviction for failure to support a child does not violate this constitutional provision. See State v. English, 101 S.C. 304, 85 S.E. 721, 85 (1915) (imprisonment for violation of criminal statute against failing to support wife without just cause does not violate constitution because it is punishment for breech of criminal statute). However no case law authorizes imprisonment for debt based upon a mere finding of civil contempt.
The goal of collecting past due child support and alimony is laudable but the means that South Carolina uses to accomplish this are not just. If the court’s goal is to actually punish the payor for non compliance, it either needs to use criminal contempt sanctions (which afford the alleged contemnor much greater rights, such as the right to counsel, the right to remain silent, and the right to a jury trial if the incarceration period will be greater than six months) or use the criminal courts and prosecute the delinquent payor for failure to support a spouse or child under S.C. Code Ann § 63-3-20. If the court’s true goal is to use civil contempt to obtain payment and enforce compliance with support orders it needs to end the incarceration when the payor pays what he or she has the current ability to pay and then put the payor on an accelerated payment plan, using wage withholding when possible, on the remaining arrears. Using civil contempt to punish delinquent payors is an impermissible application of civil contempt.