Is the application of civil contempt in South Carolina’s “daddy round-ups” improper?

“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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

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  • John Taylor

    I really found this blog interesting. My personal case serves as a prime example of what’s wrong with the S.C civil law and what Mr. Forman has stated. I cannot pay my ex wife the amount that I owe her because I suffer from M.S and now work from home for a lot less than I use to make in the corporate world. I have already been locked up once for seven days until my in-laws paid $19,000 in back payments. ( I owe nearly $1800 a month which is another story in itself.) For the last two years I have been through two lawyers trying to get my Ex to agree to a new payment or a lump sum settlement that my Dad was graciously willing to pay. The problem is that my ex wife will not respond to the courts at all. My lawyer has told me that there is nothing he can do since there is no rule which compels her to answer, As a result, I have been labled a dead beat Dad and have another warrant out for my arrest. What really stinks is that I have now exhausted all of my money and can’t continue to pay a lawyer or pay for all the medical bills that are accumulating. As a result I am currently doing research to see if I can file any civil action myself. I know it’s a long shot but I have nothing left to try and as it stands now I can’t visit my kids in S.C without being thrown back in jail despite my attempts to make things right. I could write a book on my experiences with the Greenville S.C family court but I’ll spare you the details. Just know that I appreciated this article and for anyone out there just getting started with a S.C divorce make sure you hire the best lawyer available even if breaks you. One wrong move and you will be taken to the cleaners and hung out to dry!

  • WR Waller

    I too suffered six months incarceration in Florence County as the result of these draconian laws. I had been out of work for several months, and in rehab for drug addiction when I was hauled in on a bench warrant. How that affected my recovery is another story all its own! That I could not pay any monies, nor provide for my release in any other manner put me out of touch with the “keys in my pocket” to secure my freedom. I was actually sentenced to a FULL year (to be six months if I got my “good time”). What I want to know is HOW these law serve to protect the children involved? Clearly, if in jail, I could not earn any money, so how was my daughter being helped by my incarceration? If this is to be a criminal penalty, then so-be-it, I could understand that as punishment for ME. What is the intent of the law under civil contempt when punishment is not a prescribed solution of the law? I can only conclude that counties in SC (and the state by aegis) have resorted to “debtor prisons” in order to provide much-needed public works “volunteers” (as well as ancillary trustees to perform tasks in jails where true criminals are housed) soley because the governments lack funds to pay for these services. Cleaning up trash along roadways HAS to be done by someone. Why pay a country employee $15 an hour when a “jail bird” can do it for free? I got to wash laundry, and was exposed to MRSA (staff) as a result. And why, because I owed $700 dollars in child support? Six months for $700. I was not the recipient of any “magic fountain” proceeds. Now, both my ex and I live in other states, but I pay my child support ($84/week )even though I currently receive only $240 a week in worker’s comp. I have no driver’s license, and cannot secure other employment. I know one thing for sure: I’ll never set foot in SC again unless I am chained and bound!

  • Mrs. Spires

    I am totally at a loss for words. My husband was apprehended last Saturday for “failure” to pay child support after being laid off from his plumbing job. I am the sole provider of our family income. We have a son together and I am having a very difficult time making juggling our available funds. With the current recession and an unemployment rate of over 10% in Georgia alone, it has been a challenge for him to obtain gainful employment.
    He is currently sitting in the Cobb County Jail, in Georgia, waiting extredition to S.C. to face a judge and possible prison time. It is a wonder to me, how the judicial system in S.C., determines imprisonment for a debt owed (other than fraud), can be collected by someone who does not have the collateral or income to satisfy the debt. Not only are they not able to collect on the “arrearage”, but they are also securing hardship to me and my son!
    I do not know where I am going to secure the funds necessary to ensure the release of my husband. If this blog is accurate, I am concerned that he may be incarcerated for a year! What then???? Please help!

  • H

    In Charleston County, specifically, there is a work release program designed to allow those held in civil contempt the ability to continue working, despite their imprisonment. How, then, are they unable to pay/unable to hold the keys to the courthouse?

    • H-

      Because until they have paid the full amount they remain in prison.

  • Issueksjide

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  • paris jasper

    i am a single father with a four year old from a current relationship recently ended, i pay child support to a previous wife for my other son. i lost my job in charleston sc and could not find work in time before i was ruled in to court,being that i am a single dad and also homeless with my 4 year old i did not show up because i new the end result, i would be arrested and my 4 year old would be taken from me. i now stay in another state still stuggling and jobless but attending school to get a career payed for by financial aid, i intend on catching up on my payments as soon as i graduate or even before if i can find employment. i shouldn’t have to run to resolve this issue, i dont feel that every father that cant pay child support is a dead beat. sometimes a series of unfortunate events happen, for example how many times have we not been able to afford a car payment or a house payment, or cable bill or cell phone bill etc. my point is this, we all get behind in bills and sometimes even have to downsize or get rid of some of our possessions do to finances but child support can not just be dropped or owed or put on hold. its payment or jail. im so far behind that i have no choice but to run for fear that i will loose my child that i am taking care of all alone and even then, how long before they expedite me. what can i do, what are some options.

    • Ivory

      DON’T be afraid, I too have been in the same situation but I do not have custody of my kids. It was a simple traffic stop and I told the police who I was got lock up went to court told the judge what I was trying to accomplish for my kids and myself. I got 30 days but owed over 10,000 in back support and when I got out it was a little relief about the warrant but the sad part about it is we are still married! Find a family member who would be willing right now to look after your child just in case so it wouldn’t be a worry cause you can’t run forever. Just humble yourself and everything will work out just fine….

  • JC

    In these tough economic times, there are more and more Americans who cannot earn the income they used to earn, including divorced fathers, but courts just won’t acknowledge this reality when it comes to alimony and child support. We hear so many of these stories from every state (or so it seems).

    Applying for downward modification almost never works, no matter how dire the father’s financial situation – or how long he has been out of work.

    I ask myself: why are marriages “for better or for worse” but divorces are only “for better”?

    The argument doesn’t have any resonance with the courts, of course, but I keep wondering ….

  • Keith

    Georgia like most states experience huge variances in Child Support awards from court to court. It almost seems it is based on how good your lawyer is or who you know. That being said the issue of imputed inome is a tool a Judge can throw at you. I had my income imputed at two times my actual income. I had no ability to pay the required amount from the beginging. I have been in jail which caused me to loose the job I had and start over. The arearages continue to mount and the only solution is to hire a lawyer, and hope it can be reduced. How do you hire a lawyer at $150.00 per hour if you can’t pay child support.

    These laws favor women and encourage divorce.

  • chiquita

    my boyfriend is locked up for contempt of child support and has a purge amount set at $2,500. How many days will he sit in jail if he does not pay purge amount or is there any way the purge amount will be lowered?

  • Charles Sellers

    I was told today that I have a bench warrant for my arrest. My divorce states that “The child support will begin on the first day of April 2013, and of the first day of each month thereafter until each child reaches the age of 18.” I amount I pay is $100 per week. I get paid bi-weekly and pay EVERY payday. My last payment was made Dec 18th. I get paid tomorrow and planned on paying $200 like normal. However, My ex-wife has turned me in for non-payment stating that “I’m a week behind.” Tomorrow is only the 31st, so my payment for the month of December is NOT DUE for two days. Now, I have to go pay my usual amount then go and turn myself in on my day off for a contempt of court charge. This means I get to go to jail for a few hours, get hauled into court in an Orange Jumpsuit to prove I’ve been paying in compliance. WTF SC? Shouldn’t the Clerk of Court have a file on payment arrangements so that these kinds of things do not happen? I’d really like to get my CS taken directly from my paycheck so that this doesn’t happen again, but I fear that even though I am paid I may be held in Contempt for six months.

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