Contempt: The New Debtor's Prison : 1 Contempt: The New Debtor's Prison Jeff Blankenship & Jamie Jameson
Kentucky Constitution § 18 : 2 Kentucky Constitution § 18 The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.
Dr. Samuel Johnson-1709-1984 : 3 Dr. Samuel Johnson-1709-1984 "The confinement... of any man in the sloth and darkness of a prison, is a loss to the nation, and no gain to the creditor. For, of the multitudes who are pining in those cells of misery, a very small part is suspected of any fraudulent act by which they retain what belongs to others. There can be no reason why any debtor should be imprisoned, but that he may be compelled to payment: and a term should therefore be fixed, in which manner the creditor should exhibit his accusation of concealed property. If such property can be discovered, let it be given to the creditor; if the charge is not offered, or cannot be proved, let the prisoner be dismissed."
"It is vain to continue an institution which experience shows to be ineffectual. We have now imprisoned one generation of debtors after another, but we do not find that their numbers lessen.
Agenda/Topics to Be Covered : 4 Agenda/Topics to Be Covered What is Contempt?
Civil Contempt vs. Criminal
Direct vs. Indirect
Effect of Indigency
Double Jeopardy & Contempt
Offering Alternatives to Incarceration
Ky. Child Support Guidelines
The Concept of Voluntary Employment
Modification of Support
Making The Record
Opening & Introduction : 5 Opening & Introduction All valid court orders are enforceable by contempt powers, which all courts have.
Contempt powers are necessary to keep the system from being ineffective.
Most commonly, contempt powers are used to collect on a court-ordered debt such as child support, restitution, etc..
All courts have two separate and distinct contempt powers: civil and criminal
Civil Contempt : 6 Civil Contempt Various ways courts define, but most common is: “failure to do something under court order, usually for the benefit of a party litigant.”
Purpose: to coerce person into future compliance with order
Defining characteristic: contemnors “carry the keys of their prison in their own pocket” i.e., they must be allowed to “purge” their contempt by doing some possible act. Typically this means paying an amount of money they can actually pay.
Proof Standard: Client is presumed to have ‘willfully’ violated the court’s order. The defendant/respondent must prove ‘clearly & categorically’ that he could not comply and that he took all reasonable steps to comply
Due Process is required and right to counsel applies
Criminal Contempt : 7 Criminal Contempt Conduct “which amounts to an obstruction of justice, and which tends to bring the court into disrepute.”
Purpose: To punish prohibited conduct in order to prevent the court from falling into disrepute
Two types: direct and indirect
Direct: no due process/no hearing if ‘in presence of the court’
Indirect: Due process required. Standard of Proof for indirect:
Opposing Party must prove beyond a reasonable doubt that client
Willfully/intentionally disobeyed
A valid court order
He knew existed
No ‘purge’ required
How do I know if it’s civil or criminal? : 8 How do I know if it’s civil or criminal? Easy:
Failure to Act
V
Act
Note: that both civil and indirect criminal contempt can require a jury trial if the contempt is “serious.”
Effect of indigency on using contempt powers to collect debt : 9 Effect of indigency on using contempt powers to collect debt Alabama v. Shelton applies
“Cannot compel doing of an impossible act” i.e., must set a ‘purge amount’ that client can actually summon. If that is zero, then it’s zero.
Court must determine client’s ability to pay and limit contempt proceedings to that amount
If court finds that client can’t pay, must fashion a non-monetary remedy if any
Ongoing issue: Is the revocation of a conditionally discharged sentence the use of contempt powers when the sentence is based on a finding of contempt? See Blakeman.
Contempt & Double Jeopardy : 10 Contempt & Double Jeopardy It NEVER constitutes double jeopardy to hold someone in civil contempt for a period of time they didn’t pay that was previously covered by a criminal charge or vice versa.
HOWEVER! This assumes the court PROPERLY applies the law of civil contempt. If the court does not set a purge or if the purge is too high (i.e., impossible) then such is tantamount to criminal contempt and thus DOES constitute double jeopardy.
Offer Alternatives to Jail! : 11 Offer Alternatives to Jail! In fashioning a sentence for contempt, a court should remember that jail is “extraordinary and subject to certain limitations.”
Court must exercise “the least possible power adequate to the end proposed.”
Court should resort to criminal sanctions only after it decides civil is not sufficient
Think outside the box! Be creative and come up with an answer that belays the court’s concerns about your client’s future compliance.
Lewis makes it clear that courts can and should get creative in fashioning remedies for civil contempt, e.g., periodic reporting, wage assignments, impounding of tax returns, or other such steps.
Note: some courts have started using the Ky Dept of Voc Rehab
Child Support Guidelines : 12 Child Support Guidelines KRS 403.211
Factors to consider in setting support:
Gross income of both parties
Cost of health insurance
Cost of work related childcare costs
Requirement of health insurance where available. KRS 403.211(7)(a)
Uninsured medical expenses are prorated between the parties after payment of the first $100 by the custodian per child per calendar year. KRS 403.211(9).
KRS 403.212 contains the guidelines
The guidelines contain statutory support for varying from them where applying them would be “unjust or inappropriate.” KRS 403.211(3) gives examples of these situations to include either parent’s “extraordinary needs such as medical expenses.”
The Concept of Voluntary Unemployment : 13 The Concept of Voluntary Unemployment KRS 403.212(2)(d) allows court to set a person’s wage at their “potential income” except where that parent is physically or mentally incapacitated or is caring for a child age 3 or younger for whom the parents owe a joint legal responsibility
Before imputing income based on ability to work, court must take into account prevailing job opportunities in that region
Modification of Support : 14 Modification of Support Can file anytime (do worksheet)
But need at least 15% change in amount of support (not amount of income) or else there is presumptively no “material change in circumstances”
Incarceration DOES NOT constitute a material change in circumstances.
Note: this does NOT mean client can be held in contempt for failing to pay $ that racks up during incarceration
Make sure amount will decrease before filing for modification
Make the Record! : 15 Make the Record! If you want to do a good job laying the foundation for an appeal, you have to make the record!
Clarify the standard at beginning of hearing or possibly even before
At end of hearing where Judge sentences your client to incarceration consider these methods:
Orally ask Judge to reconsider both the contempt finding as well as the sentence
Object!
Ask the court to place its specific findings of fact and conclusions of law on the record
After the hearing (but w/in 10 days), file a CR 52.02 motion/motion to reconsider
File the appeal! And, don’t forget, you can apply for emergency relief.
Thank you for Your Attention : 16 Thank you for Your Attention Now Let’s Make Dr. Johnson Proud!