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Penalties for not Paying Child Support: Contempt
There are several penalties that may be levied against a non-custodial parent who fails to make child support payments mandated by a court order. These penalties include: writs of execution, garnishments, imprisonment, license revocation and contempt actions. Contempt actions are often the first option chosen by custodial parents in an effort to enforce their child support order.
Contempt may be defined as the willful refusal of a party to comply with a court order. Crozier v. Crozier, 231 Ga. 468 (1973). All orders, judgments and decrees commanding the payment of child support by a non-custodial parent to a custodial parent on behalf of the child or children involved may be enforced by an action for contempt against the offending party. O.C.G.A. §19-6-4. Only the parent awarded child support may enforce the child support award by an action of contempt. O.C.G.A. § 19-6-16.
Practice Pointer - Proving Contempt
Contempt must be willful. For a court to find a parent in contempt, the court must find that: 1) a judgment or order has been previously entered with the court concerning the issue, and 2) the charged party is in noncompliance with that order. Kent v. Kent, 265 Ga. 211 (1995); In re K.D, 272 Ga. App. 803 (2005).
Generally, the superior court that rendered the order or judgment concerning child support has the exclusive authority to enforce that order through a contempt action. Thus, a parent seeking to file a motion for contempt generally must file it with the court that originally entered the initial child support order. Connell v. Connell, 222 Ga. 765 (1966). When ruling on a contempt action, the court has the authority to enforce the terms of the original child support order. However, in a contempt action, the court does not have the authority to modify the terms of the order or to grant any additional relief that is not within the scope of the initial order. Harris v. U.S. Development Corp., 269 Ga. 659 (1998).
Defenses Against Contempt
Since a parent must willfully disobey the court’s order concerning child support before they may be found in contempt, if a parent shows that the non-payment is not willful they may defend themselves against the contempt action. A parent may also purge or rid themselves of a contempt action by paying all sums due and owing or otherwise complying with the court’s order. Edwards v. Edwards, 224 Ga. 224 (1968). There are several defenses to contempt actions, including but not limited to the following:
- Inability to pay - If the obligated parent is not able to pay, she will be not guilty of contempt. See Brown v. Brown, 269 Ga. 724, 725-26 (1998) (citing Brown v. Brown, 237 Ga. 122 (1976) (overruled on other grounds); Ensley v. Ensley, 239 Ga. 860, 864 (1977)).
- Void judgment and decree - The parent charged with contempt may defend themselves against the contempt action by claiming that the underlying order for child support is void. A court’s order may be void if the court that entered the initial child support order lacked the proper jurisdiction or venue to hear the case. See Easterling v. Easterling, 231 Ga. 90 (1973).
- Change of custody - A judgment for child support will terminate if the obligated parent acquires legal custody of the child involved. Thus, a change of custody may be a defense to a contempt action for failure to pay child support. See Kelly v. Kelly, 115 Ga.App. 700 (1967).
- Supplemental payments - Benefits received under Title II of the federal Social Security Act by a child on the noncustodial parent's account shall be counted as child support payments and shall be credited towards the noncustodial parent's monthly child support obligation. O.C.G.A. 19-6-15(f)(3). Social Security Disability payments received by the noncustodial parent for the benefit of the children should be credited towards the noncustodial parent's child support obligation. See Perteet v. Sumner, 246 Ga. 182 (1980).
- Reliance upon an agreement - Although a private agreement between the parents to reduce the amount of child support is not generally legally binding unless that agreement is incorporated by the court into a modification of the original decree, if the non-custodial parent relies in good faith on such an agreement, she may be excused from a contempt action based on failure to make the excused payments. Stanton v. Stanton, 223 Ga. 664 (1967). This is an especially difficult defense and discussing this matter with an attorney is strongly advised.
- Vagueness - If the terms of the initial order or decree are too vague to be enforceable, the non-custodial parent cannot be found in contempt. In this case, the disobedient parent may not be charged with contempt based on the vague order. Buckley v. Buckley, 239 Ga. 433 (1977).
Although the parent charged with contempt may assert these defenses, these assertions may not necessarily be successful. Even if the parent charged with contempt is found not guilty of contempt, they are still liable for making payments since a finding that a party is not in contempt only shows that the failure to pay was not willful. The finding does not rid the charged party of his or her initial obligation. Crist v. Crist, 243 Ga. 796.
If a parent is found to be in contempt of court for failure to pay child support and fails to pay the amount owed as required by the court, that parent may be fined or imprisoned until she complies with the court’s order. Bowen v. Bowen, 230 Ga. 670 (1973); Mann v. Malone, 231 Ga. 397.