The oft-used term “dead beat dad” conjures up an image of a father who neglects to support his offspring emotionally or financially. Not every dad who does not fulfill his child support obligation can be accurately construed as a “dead beat.” The law recognizes this distinction.
In Georgia, a petitioner must show two elements to the court to sufficiently set forth a contempt cause of action. First, the petitioner must show that the respondent has been ordered to pay child support by the court and that he has failed to pay the said amount. Second, the court must decide whether respondent’s failure to comply was willful or without justification. Thus, absent a showing of fault, a petitioner’s contempt claim will fail. Although the petitioner has the burden to prove noncompliance, the respondent bears the burden of showing that his failure to pay was not willful, that he has exhausted all resources at his disposal, and that he remains unable to honor the court’s order. This article sets forth the most commonly raised defenses to a contempt action for non-payment of child support. These reasons include: “(1) respondent spouse’s inability to pay, (2) void judgment and decree, (3) change of custody, (4) supplemental payments, (5) reliance upon agreement, and (6) vagueness” among others. (See Georgia Divorce, Alimony, and Child Custody by Dan E. McConaughey). Inability to pay is a valid defense to a contempt action, however such a showing is more difficult than one might imagine. Simply showing that you are unemployed is not sufficient to establish an inability to pay. Courts are less than sympathetic to an individual who has other means of making payments. Thus, a Respondent who sets forth this defense must be prepared to prove that he is not only unemployed but also that he is incapable of finding productive employment despite appropriate efforts. Further, if a party is able to borrow funds from another individual to satisfy his obligation, this should be done rather than coming to court citing an inability to pay. Lastly, courts have held that a party who has any assets (including veteran’s disability, real property, etc.) must exhaust such funds before articulating an inability to pay. Another defense to a contempt action is when the respondent has obtained legal custody of the child(ren) for which he is ordered to pay support. A court order transferring custody is sufficient proof of a custodial change, but a private agreement by the complaining party transferring custody in lieu of an order may also warrant a decision to stop making child support payments. Moreover, a party may unilaterally reduce his support payments to offset the required payments by an amount equal to the social security benefits received by a custodial parent. Reliance on a previous court order or out-of-court agreement between the parties may justify non-payment. Court orders do not always clearly delineate critical elements of a child support order including when payments are to be made and in when such payments shall cease. Ambiguity in language occurs frequently where a judge simply incorporates parties’ settlement agreement into a final judgment and decree. An example of such imprecise language may involve insufficiently specifying if the payments stop after the child reaches 18 years old or continue through college. If the respondent is acting in good faith in reliance on a court order and stops making payments after the child reaches 18, he will have a valid defense to the contempt action so long as his understanding was reasonable. Although reliance on a private agreement is typically not permissible, it may protect a respondent from having to make back payments so long as the respondent relied upon the out-of-court agreement reasonably and in good faith. Another defense which is useful in any contempt action is premised on the “void for vagueness” doctrine. In order to hold an individual liable or guilty in civil or criminal contempt respectively, and to likewise subsequently levy sanctions against that individual, the rider must clearly articulate what was required. Surprisingly, however, courts have not gone so far as to require a specified amount of child support in a decree to warrant contempt. A decree of divorce requiring the Respondent to pay “reasonable child support…in accord with his financial status” has been held sufficiently clear. Nolan v. Moore, 241 Ga. 156, 244 S.E.2d 587 (1967). Courts have implied reasonableness standards when time lines for payments have not been included in a decree. For example, if a decree requires payment to be made on the first of each month or on another date agreeable to the parties, courts would not likely allow a litigant to plead that he thought he could make payments on different dates each month. A number of other defenses have been set forth countless times without success. Perhaps the most common situation is where a litigant has refused to pay child support because the party bringing the contempt action has withheld visitation. Although courts have supported the legal principle which requires a litigant to come to court with “clean hands” a party’s failure to provide visitation does not erase the liability of the individual who has neglected to pay support. Put simply, two wrongs don’t make a right. Moreover, it is not a valid defense for a respondent to assert that the complaining spouse has earnings sufficient to care for the minor children without the respondent’s payments. Although the custodial parent’s income may be a factor under Georgia’s new child support guidelines which become effective January 1, 2007, such a showing should be set forth in a modification suit requesting a reduction rather than unilaterally without a hearing in violation of a previous court order. Courts have become less forgiving of non-payment of child support. Since the sanctions for non-payment of child support may include fines or even jail time, the aforementioned defenses should be considered in formulating a response to a contempt action.