5.22Failure to Pay Child or Spousal Support: Traditional Contempt Proceedings
A.Contempt for Failure or Refusal to Obey a Support Order
“If a person is ordered to pay support under a support order and fails or refuses to obey and perform the order, and if an order of income withholding is inapplicable or unsuccessful, a recipient of support or the office of the friend of the court may commence a civil contempt proceeding as provided by supreme court rule.[1] If the payer fails to appear at the hearing, the court shall do 1 or more of the following as the court considers appropriate given the information available at the hearing:
(a) Find the payer in contempt for failure to appear.
(b) Find the payer in contempt under [MCL 552.6332].
(c) Issue a bench warrant for the payer’s arrest requiring that the payer be brought before the court without unnecessary delay for further proceedings in connection with the contempt proceedings.
(d) Adjourn the contempt proceeding.
(e) Dismiss the contempt proceeding if the court determines that the payer is not in contempt.” MCL 552.631(1).
“If the court stays a commitment order under [MCL 552.637], the payer fails to satisfy the conditions of the order, and that fact is brought to the court’s attention by the friend of the court, the court may issue a bench warrant for the payer’s arrest requiring the payer to be brought before the court without unnecessary delay for further proceedings in connection with the payer’s contempt.” MCL 552.631(2).3
“In addition to any remedy or sanction provided in [MCL 552.631 or MCL 552.633], the court may assess the payer the actual reasonable expense of the friend of the court in bringing any enforcement action for noncompliance with a spousal support order that is not eligible for funding under title IV-D” MCL 552.636.
Note that MCL 552.625 provides the court with additional remedies for the enforcement of support orders, including executing the judgment and appointing a receiver.
MCR 3.208 governs proceedings involving the Friend of the Court. MCR 3.208(B) provides that “[t]he friend of the court is responsible for initiating proceedings to enforce an order or judgment for support, parenting time, or custody.”
“If a party has failed to comply with an order or judgment, the friend of the court may move for an order to show cause why the party should not be held in contempt.” MCR 3.208(B)(1). “Alternatively, in nonpayment of support cases and as allowed by the court, the friend of the court may schedule a hearing before a judge or referee for the party to show cause why the party should not be held in contempt.” Id.
“The order to show cause or the notice of the show cause hearing must be served personally, by ordinary mail at the party’s last known address, or in another manner permitted by MCR 3.203.” MCR 3.208(B)(2).
The notice of the show cause hearing must comply with requirements for the form of a subpoena under MCR 2.506(D). MCR 3.208(B)(3). For purposes of MCR 3.208(B)(3), an authorized signature is one that comports with MCR 1.109(E). MCR 3.208(B)(3)(a). Notices under MCR 3.208(B)(3) “must state the amount past due and the source of information regarding the past due amount and act or failure to act that constitutes a violation of the court order.” MCR 3.208(B)(3)(b). “A person must comply with the notice unless relieved by order of the court or written direction of the person who executed the notice.” MCR 3.208(B)(3)(c).
“The show cause hearing may be held no sooner than seven days after the order or notice is served on the party. If service is by ordinary mail, the hearing may be held no sooner than nine days after the order or notice is mailed.” MCR 3.208(B)(4).
“The court may hold the show cause hearing without the friend of the court unless a party presents evidence that requires the court to receive further information from the friend of the court’s records before making a decision.” MCR 3.208(B)(5). “If the party fails to appear at the show cause hearing, the court may issue an order for arrest.” MCR 3.208(B)(5).
“The relief available under this rule is in addition to any other relief available by statute.” MCR 3.208(B)(6).
“The friend of the court may petition for an order of arrest at any time, if immediate action is necessary.” MCR 3.208(B)(7).
C.Contempt for Support Arrearage
“The court may find a payer in contempt if the court finds that the payer is in arrears and 1 or more of the following apply:
(a) The court is satisfied that the payer has the capacity to pay out of currently available resources all or some portion of the amount due under the support order.
(b) The court is satisfied that by the exercise of diligence the payer could have the capacity to pay all or some portion of the amount due under the support order and that the payer fails or refuses to do so.
(c) The payer has failed to obtain a source of income and has failed to participate in a work activity after referral by the friend of the court.” MCL 552.633(1).
“Upon finding a payer in contempt of court under [MCL 552.633(1)], the court may immediately enter an order that does 1 or more of the following[4]:
“(a) Commits the payer to the county jail or an alternative to jail.
(b) Commits the payer to the county jail or an alternative to jail with the privilege of leaving the jail or other place of detention during the hours the court determines, and under the supervision the court considers, necessary for the purpose of allowing the payer to satisfy the terms and conditions imposed under [MCL 552.637] if the payer’s release is necessary for the payer to comply with those terms and conditions.
(c) Commits the payer to a penal or correctional facility in this state that is not operated by the state department of corrections.
(d) Apply any other enforcement remedy authorized under this act or the friend of the court act for the nonpayment of support if the payer’s arrearage qualifies and the evidence supports applying that remedy.
(e) Orders the payer to participate in a work activity. This subdivision does not alter the court’s authority to include provisions in an order issued under this section concerning a payer’s employment or his or her seeking of employment as that authority exists on August 10, 1998.
(f) If available within the court’s jurisdiction, orders the payer to participate in a community corrections program established as provided in the community corrections act, 1988 PA 511, MCL 791.401 to [MCL] 791.414.
(g) Except as provided by federal law and regulations, orders the parent to pay a fine of not more than $100.00. A fine ordered under this subdivision shall be deposited in the friend of the court fund created in . . . MCL 600.2530.
(h) Places the payer under the supervision of the office for a term fixed by the court with reasonable conditions, including, but not limited to, 1 or more of the following:
(i) Participating in a parenting program.
(ii) Participating in drug or alcohol counseling.
(iii) Participating in a work program.
(iv) Seeking employment.
(v) Participating in other counseling.
(vi) Continuing compliance with a current support or parenting time order.
(vii) Entering into and compliance with an arrearage payment plan.” MCL 552.633(2).
“In addition to any remedy or sanction provided in [MCL 552.631 or MCL 552.633], the court may assess the payer the actual reasonable expense of the friend of the court in bringing any enforcement action for noncompliance with a spousal support order that is not eligible for funding under title IV-D.” MCL 552.636.
2.Order of Commitment5
“An order of commitment under [MCL 552.633] shall be entered only if other remedies appear unlikely to correct the payer’s failure or refusal to pay support.” MCL 552.637(1).
“A commitment shall continue until the payer performs the conditions set forth in the order of commitment but shall not exceed 45 days for the first adjudication of contempt or 90 days for a subsequent adjudication of contempt.” MCL 552.637(4).
“The court may further direct that a portion or all of the earnings of the payer in the facility or institution shall be paid to and applied for support until the payer complies with the order of the court, until the payer is released according to this section from an order of commitment, or until the further order of the court.” MCL 552.637(5).
“Notwithstanding the length of commitment imposed under this section, the court may release a payer who is unemployed if committed to a county jail under this section and who finds employment if either of the following applies:
(a) The payer is self-employed, completes 2 consecutive weeks at his or her employment, and makes a support payment as required by the court.
(b) The payer is employed and completes 2 consecutive weeks at his or her employment and an order of income withholding is effective.” MCL 552.637(6)
a.Orders Under MCL 552.633(1)(a)
Orders “shall state the amount to be paid by the payer in order to be released from the order of commitment, which amount may not be greater than the payer’s currently available resources as found by the court.” MCL 552.637(2).
b.Orders Under MCL 552.633(1)(b) or MCL 552.633(1)(c)
Orders “shall state the conditions that constitute diligence in order to be released from the order of commitment, which conditions must be within the payer’s ability to perform.” MCL 552.637(3).
“If the court enters a commitment order under [MCL 552.633(1)(b) or MCL 552.633(1)(c)], and the court finds that the payer by performing the conditions set forth in the order of commitment will have the ability to pay specific amounts, the court may establish a specific amount for the payer to pay and do any of the following:
(a) Stay the order of commitment conditioned upon the payer’s making the specified payments.
(b) Stay the order of commitment and order that upon default of the payer in making a specified payment, the payer shall be brought before the court for further proceedings in connection with the contempt proceedings that may include committing the payer for the number of days that the payer would have been committed had the court not stayed the order.
(c) Give credit toward the payer’s potential maximum commitment for each specified payment made in compliance with the order of commitment.” MCL 552.637(7)
“If the court enters a commitment order under [MCL 552.633(1)(b) or MCL 552.633(1)(c)], the court may do any of the following:
(a) Stay the order of commitment conditioned upon the payer’s complying with the conditions set forth in the order of commitment.
(b) Stay the order of commitment and order that upon default of the payer to satisfy a condition of the order, the payer shall be brought before the court for further proceedings in connection with the contempt proceedings that may include committing the payer for the number of days the payer would have been committed had the order not been stayed.
(c) Give credit toward the payer’s potential maximum commitment for complying with conditions in the order.
(d) Incarcerate the payer with the privilege of leaving jail to comply with conditions in the order of commitment.” MCL 552.637(8)
For further discussion of delayed conditional commitment orders, see the Friend of the Court Bureau’s memorandum, page 2.
“In the absence of proof to the contrary introduced by the payer, the court shall presume that the payer has currently available resources equal to 1 month of payments under the support order. The court shall not find that the payer has currently available resources of more than 1 month of payments without proof of those resources by the office of the friend of the court or the recipient of support.” MCL 552.633(3).
b.Constitutionality of Statutory Presumption
Statutory presumptions of ability to pay do not violate procedural due process requirements in civil contempt proceedings; however, procedural due process requirements do not allow presumptions of ability to pay in criminal contempt proceedings. Hicks v Feiock, 485 US 624, 637-638, 641 (1988).
D.Civil or Criminal Contempt Proceedings
Contempt proceedings for nonsupport are usually civil in character. See MCL 552.631(1) (providing that civil contempt proceedings may be instituted following a failure to pay). However, criminal contempt proceedings can be initiated under appropriate circumstances. See MCL 552.627(1)(d) (authorizing the trial court to take other enforcement action under applicable laws, including MCL 600.1701).
Committee Tip:
While civil contempt is the norm, there may be circumstances where the court wishes to charge the defendant with criminal contempt. This could occur where a defendant has willfully violated a support order in the past and has no present ability to comply. For example, a defendant may have received a substantial sum of money after settlement of a tort claim and may have been required by prior order to use a substantial portion of that settlement to pay past due child support. If the defendant failed to do so and now has no funds with which to pay support, the court might choose to proceed on the basis of criminal contempt. In such a situation, it would be wise for the court to refer the case to the prosecutor for possible initiation of criminal contempt proceedings.
The court may not sentence a defendant to a fixed jail term without complying with all of the procedural protections required for a criminal contempt case. Borden v Borden, 67 Mich App 45, 49-50 n 1 (1976).6 See Chapter 3 for a discussion of the procedural requirements in criminal contempt cases.
Unless the trial court is presuming an ability to pay under MCL 552.633(3),7 the trial court must determine whether a person has an ability to pay before finding a person in contempt of court for nonpayment of a support order. Sword v Sword, 399 Mich 367, 379 (1976), rev’d on other grounds by Mead v Batchlor, 435 Mich 480 (1990).8 The Supreme Court stated:
“If the judge concludes from the testimony of defendant and others that defendant has ‘sufficient ability to comply with’ the order or ‘by the exercise of due diligence could be of sufficient ability, and has neglected or refused’ to comply, defendant may be found in contempt of court.” Sword, 399 Mich at 379.
In determining whether a payer has or should have the ability to pay, the court should consider:
•employment skills, including the reasons for any termination;
•education and skills;
•work opportunities;
•effort in seeking work;
•personal history, including present marital status and means of support;
•assets and any transfer of assets;
•efforts to modify the support order claimed to be excessive;
•health and physical ability;
•availability for work (periods of hospitalization and imprisonment); and
•the location of the payer since the decree and reasons for moves. Sword, 399 Mich at 378-379.
This list of considerations is not comprehensive. Id. at 379 (noting that “[d]ifferent circumstances will suggest other questions[]”). See also Wells v Wells, 144 Mich App 722, 732 (1985) (“The circumstances of every case will require different inquiries.”).
The Michigan Child Support Formula Manual includes additional factors for consideration, including prior employment experience and history, reasons for termination or changes in prior employment, mental disabilities that may affect the payer’s ability to work, evidence that the payer could earn the imputed income, and the prevailing wage rates and the available work hours in the geographical area. MCSF 2.01(G)(2).
Federal law requires Title IV-D agencies, such as the Friend of the Court, to maintain and use an effective system for carrying out several specified actions, including establishing guidelines for use in civil contempt proceedings. 45 CFR 303.6 (2016). The guidelines must include a requirement that the agency:
“(i) Screen the case for information regarding the noncustodial parent’s ability to pay or otherwise comply with the order;
(ii) Provide the court with such information regarding the noncustodial parent’s ability to pay, or otherwise comply with the order, which may assist the court in making a factual determination regarding the noncustodial parent's ability to pay the purge amount or comply with the purge conditions; and
(iii) Provide clear notice to the noncustodial parent that his or her ability to pay constitutes the critical question in the civil contempt action[.]” 45 CFR 303.6(c)(4).
Where the trial court “only asked what the defendant had been earning the past few years[]” and “did not inquire about nor consider other factors which might have affected [the] defendant’s ability to comply with the order[,]” its order committing the defendant to jail for contempt was reversed. Borden v Borden, 67 Mich App 45, 51 (1976) (holding that “[t]here was no finding that the defendant had sufficient present ability to obey the court’s order[]”) (quotation marks and citation omitted).
The trial court did not err by holding the plaintiff in contempt for failure to pay where although the plaintiff suffered from arthritis, that condition did not “obviate all potential employment opportunities[,]” and the sentencing for the contempt was delayed for a month in order for the plaintiff to find employment. Butler v Butler, 80 Mich App 696, 701 (1978). At the sentencing hearing the plaintiff failed to provide any testimony regarding “what measures had been taken to find suitable employment.” Id. Accordingly, the Court held that “the judgment is supported by a record sufficient to sustain the trial court’s finding that plaintiff is physically able to work and has neglected or refused to exercise due diligence to place himself in a position of sufficient ability to comply with the support order. The coerciveness of civil contempt may provide the plaintiff with the necessary incentive to rectify this unfortunate situation.” Id.
Where the record demonstrated that the defendant had no means of support other than ADC (Aid to Dependent Children) benefits, an order to pay a portion of an arrearage or go to jail for 90 days was beyond the power of the court. Gonzalez v Gonzalez, 121 Mich App 289, 291 (1982).
The trial court did not abuse its discretion by holding the defendant in contempt for failing to pay child support where the evidence showed the defendant last worked as a landscaper earning $100 per week and prior to that worked as a contractor earning $130 per week and did not pay any child support during that time. Smith v Smith, 155 Mich App 752, 756 (1986). Accordingly, the testimony supported the “trial court’s finding that [the] defendant was able to make some payments on his support obligation but failed to do so.” Id. at 756-757 (modifying the contempt order to permit the defendant’s release from jail for the purpose of obtaining employment).
The trial court did not abuse its discretion in entering a contempt order where the defendant paid the $1,000 to avoid confinement, and the defendant’s counsel admitted the defendant’s ability to pay and represented that the defendant was making regular support payments. Deal v Deal, 197 Mich App 739, 743-744 (1993) (finding the fact that the amount ordered exceeded four weeks of payments under the support order irrelevant in light of the defendant’s admission of ability to pay).
F.Waiver of Contempt and Hearing on Modification of Support Order
MCL 552.17a(2) allows the court to waive the contempt in certain circumstances:
“Upon an application for modification of a judgment or order when applicant is in contempt, for cause shown, the court may waive the contempt and proceed to a hearing without prejudice to applicant’s rights and render a determination on the merits.”
1.Contempt Proceedings Against Payer’s Employer
An employer may be held in civil contempt of court for negligently failing to comply with a court order appointing a Friend of the Court receiver of any worker’s compensation settlement to defray a child support arrearage. In re Contempt of United Stationers Supply Co, 239 Mich App 496, 499-501 (2000). In this case, a support payer’s employer was served with a copy of the receivership order but paid settlement funds directly to the support payer. Id. at 498. Service of a copy of the receivership order by certified mail, return receipt requested, is sufficient. Id. at 501-503. In such cases, a court may order the employer to pay the support recipient (i.e., the custodial parent) damages in the amount of the arrearage to be paid from the settlement, attorney fees, costs, and judgment interest. Id. at 498-499.
In Mead v Batchlor, 435 Mich 480, 498 (1990), the Michigan Supreme Court, relying on Lassiter v Dep’t of Social Services, 452 US 18, 25-27 (1981),9 concluded that the civil or criminal nature of a proceeding is not the determining factor in deciding whether procedural due process requires the appointment of counsel. Rather, the right to appointed counsel is triggered by a person’s fundamental interest in physical liberty. Mead, 435 Mich at 498. But see Turner, 564 US at 435,10 where the United States Supreme Court concluded that in cases involving child support enforcement, “where . . . the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide support) [even if that person may be subject to incarceration up to one year].” However, to meet due process requirements, “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.” Turner, 564 US at 435. Alternative procedures include sufficient notice regarding the importance of the ability to pay, a fair opportunity to present and dispute relevant financial information, and court findings on the noncustodial parent’s ability to pay. Id. at 448.
For a discussion of right to counsel in contempt cases and how to comply with Turner’s requirements, see the Friend of the Court Bureau’s memorandum, pages 4-5.
3.A Lien is Not A Permissible Contempt Sanction
The trial court may not impose a lien as punishment for contempt. Wells v Wells, 144 Mich App 722, 733 (1985). “A lien under appropriate circumstances is a separate enforcement method which may be used when contempt proceedings have failed.” Id. (noting procedures for a lien are set forth by MCL 552.27).