Tuesday, November 1, 2011

Featured Case - Ivy - Contempt for Failure to Child Support

CW, CHFS, and Larry Barnes v. Renee Ivy (now Knighten)

Rendered in the Supreme Court on October 27, 2011,

To be published

The Supreme Court issued a well-crafted, 5-2 opinion in a case revolving around a family court order holding a mentally ill woman in contempt for failing to pay $106 in child support when her sole source of income was $25-$50 per month given to her by her public administrator from the remainder of her SSI benefits after her room and board were paid. The trial court modified the base amount of support to $60 at the hearing but also found Ivy to be able-bodied capable of providing financial support to her child, held her in contempt, and ordered Ivy to pay $60 plus $5 towards the arrearage or face arrest and service of 30 days in jail. The Court of Appeals reversed the contempt order as well as the order modifying because they were not supported by the evidence.

    The Court recognized the legislative mandate for allowing support to be ordered and to accrue even against a parent with no present ability to pay because “present circumstances need not be permanent.” SSI benefits are also included in that calculation by statute. However, the Supreme Court affirmed that a trial court always has the “broad discretion” to reduce a parent’s support obligation to less than the minimum amount of $60 if it determines from the evidence that that amount is unjust or inappropriate under KRS 403.211(2). The Court criticized the paucity of findings in the family court’s order supporting the decision to enter a $60 obligation. The Court found that the family court was operating under the “unfair or inappropriate” section of the statute to deviate from the statute, which was in its discretion to do, but erred when it did not explain through facts or law why it set a new amount that was higher than what Ivy received each month from her administrator. That portion of the case was remanded for reconsideration and findings under the standard set by the Court, rather than have the Court “divine” what led the family court to rule that way.

    The Court then distinguished between the ability to set and accrue support and the ability to collect it. A parent’s “ability to pay, …, does determine the extent to which support can be collected. Where there is no ability to pay, it is not contumacious to fail to do so.” The Court agreed with the Court of Appeal that the family court erred in finding Ivy was in contempt for failing to pay her support based on the facts from the hearing. The Court held that while receipt of SSI benefits alone does not compel a finding of inability to pay support, the family court is not free to “simply … disregard the [SSA’s] determinations that an SSI recipient is disabled and needs the full amount of his or her award for subsistence. If earning capacity is to be attributed to the recipient, or if child support is to be demanded from the SSI benefit itself, there must be evidence clearly establishing the recipient’s ability to work or the recipient’s ability to afford the support payment.”  The family court’s finding that Ivy was able-bodied and capable of providing support did not refer to the evidence and was unsupported by the evidence and was an abuse of discretion. The CHFS had relied on the family court’s observations of Ivy at other hearings. About this, the Court held, “While the family court’s courtroom observations are not meaningless, they cannot be the sole basis for the court’s assessment of Ivy’s mental condition, as assessment requiring specialized training.” The Court also noted that Ivy was paying support because the family court had found her unfit to have custody or even unsupervised visits with her baby.

   The Court went through the difference between civil and criminal contempt, finding this was still civil even though it flirted with criminal contempt. The Court found the family court’s coercive remedy for the contempt, i.e. the threat of future incarceration for future violations was not a true purge opportunity and was invalid.

    The Court also rejected CHFS’ attempt to use judicial notice as a method of getting into the record a purported current payment ledger showing Ivy was now paying the support. The Court held that assessing the proprietary of contempt must be based on the evidence before the trial court at the time of the hearing. It also wisely recognized that a payment ledger says nothing about whom or how the support is being paid.

    The Court encouraged courts, after a valid contempt finding, to fashion a meaningful remedy to fit the circumstances, as have been done by other courts.

    Lastly, the Court found that whether the attempt to collect support from Ivy by making her pay from her SSI benefits did not violate the Supremacy Clause, but held whether a constitutional violation occurred would be dealt with on a case-by-case basis.

    Trial tips- First, the result in this case was largely dictated by the excellent work of attorney David Bundrick who made a great record by calling Ivy’s public administrator to testify about her income and SSI benefits. The more great facts that are introduced about the inability of the SSI recipient to do anything other than scrape by, the better chance of defending a contempt violation. Second, the Court left open the possibility of a Supremacy Clause violation in the right circumstances (“does it do major damage to clear and substantial federal interests”). The two interests pitted against each other are the interest in the SSI benefits that are awarded solely for the benefit of the recipient to maintain a basic subsistence and the interest the state has in parents supporting their children. Depending on the evidence, that balance may well shift towards the parent. So attorneys should be making both due process and Supremacy Clause objections where the facts warrant them.

Submitted by Kathleen Schmidt