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# 72 - Contempt of court and child support enforcement

LDG Monograph # 72                                             October, 2009 -- ver. 2.1


© Lawrence D. Gorin, Attorney at Law, Portland, Oregon

Using contempt to collect a debt:  Bad idea.

    The use of contempt proceedings by private litigants as a means of child support debt collection is, in my opinion, generally ill-advised and inappropriate.  If what the judgment creditor (obligee) wants is money, go after the debtor’s assets and property, using all of the judgment remedies provided by law for doing so.  But going after the body rather than the pocketbook is all too often a waste of time and resources.

    Lawyers frequently fail to fully understood and appreciate the basic fact that the court’s authority to impose sanctions in a contempt proceeding initiated by a private litigant is limited to only “remedial” sanctions.  See Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992) and Miller and Miller, 204 Or App 82, 129 P3d 211 (2006).  “Punitive” sanctions may be imposed only in contempt proceedings initiated by a public prosecutor (attorney general, district attorney, or city attorney). ORS 33.065(2).

The specific act that constitutes contempt

    A court order for the payment of child support typically requires the obligated party to pay a specific amount of money each money on or before a specified “due date.”  Disobedience of the court’s order occurs when the obligated party fails to pay the full amount by the specified due date.  If the failure to pay in full when due is “done willfully,” it constitutes contumacious conduct.  ORS 33.015(2)(b); ORCP 78 B.  Payment of the debt after the required “due date” does not abrogate, remedy or purge the contempt.  Like the shoplifter who exits the store with merchandise he intends to steal, then feels remorse and goes back into the store to pay for the stolen merchandise, doing so does not abrogate the completed criminal act of theft.  But it may be considered as a mitigating factor when imposing sentence after being convicted.  Same with paying the child support debt after the contumacious failure to do so has already occurred.  Belated compliance with the court’s order does not mean that noncompliance, i.e., the willful disobedience and violation of the court’s prior order, did not occur.

    Failure to pay the child support “in full when due” constitutes a completed contempt for which belated compliance provides no cure.  As such, it is appropriate for imposition of a punitive sanction.  But it does not lend itself to the imposition of a remedial sanction since there is no on-going and continuing contumacious conduct.  The contumacious act, already completed, was the failure to have paid the child support in full when due.  Arguably, being in debt on account of unpaid child support is not in and of itself a violation of a court order, nor does being in debt constitute a “continuing contempt.”

The sanction for contempt: remedial vs. punitive

    The essential characteristic that makes a contempt sanction remedial (rather than punitive) is the termination of the sanction upon the respondent’s complying with the court order that is being disobeyed (the order that caused the contempt proceeding to be initiated), thereby “purging” the contempt.  If there is nothing the respondent can do to terminate the sanction and bring it to an end, the sanction, whether fixed or determinate, or indefinite and continuing, including probation, will almost invariably be punitive rather than remedial (regardless of the label given to the sanction).  ORS 33.045(2).  See Miller and Miller, 204 Or App 82, 129 P3d 211 (2006) (contempt sanction requiring husband’s conferment for fixed term of 10 days, continuing irrespective of husband’s complying with court order within the 10-day period, was a punitive sanction, not available in a contempt proceeding initiated by wife against husband).

    Further, for the sanction to be remedial, there must be something to remedy.  Pursuant to ORS 33.105(1)(d), the court may impose as a remedial sanction “An order designed to insure compliance with a prior order of the court, including probation.”  While the court thus has broad discretionary authority to fashion a specific remedy to fix the particular problem being presented, including the use of “probation” as a remedial sanction, the remedy imposed must come to an end when the problem is fixed (thus “purging” the contempt).  In addition, if there is no presently-occurring contumacious conduct (and therefore no existing actual violation being committed), there would generally be no basis on which to place the respondent on “probation.”  Placing the respondent on probation in that situation would, in effect, amount to presently imposing a penalty for contumacious conduct that might occur in the future but has not in fact yet happened.  But see the anomalous case of State ex rel Kelley v. Kelley, 128 Or App 123, 874 P2d 1364 (1994), discussed and critiqued hereinbelow.

    Other questions arise if probation is imposed as a remedial sanction in a contempt proceeding initiated by a private litigant.  For how long does the probation continue?  Fixed term?  Or indefinitely?  What are the terms and conditions of probation?  If the condition of probation is future compliance with the court’s prior order, what is supposed to happen in the event the condition is violated?   If the probation is revoked and the contemnor sent to jail, it would appear to be a punitive sanction (which cannot be imposed in a contempt proceeding initiated by a private litigant).  Also, does the future noncompliance, if and when it occurs, constitute a new act of contempt, requiring a new contempt proceeding?  If not, why not?

    Again, a past failure to pay child support “in full when due” as previously ordered by the court is just that: a PAST failure, amounting to a completed contempt for which belated compliance provides no cure.  Thereafter, the status of being in debt on account of unpaid “past support” does not amount to a violation of a court order and is not a “continuing contempt.”  In the absence of presently-occurring contumacious conduct, there is nothing for the court to “fix” or “remedy.”  What all too often happens in these situations is a sanction being imposed that is stated to be “remedial” but is really in fact “punitive” (including probation for an unstated, indefinite duration “so long as you keep all your support payments up-do-date,” with the respondent being required to periodically come back to court in the future so as “to monitor the situation”).  And all too often the lawyers and the judge do not understand and/or appreciate the difference between a sanction that is punitive and a sanction that is remedial.  Most unfortunate for the defendants in particular and the system in general.

    In sum, the essential characteristic that makes a contempt sanction remedial is the termination of the sanction when the respondent complies with the court order this is being presently disobeyed, thus terminating the continuing contempt and eliminating the need for continuation of the sanction.  In essence, once the continuing contempt is “purged,” the sanction imposed to remedy the contempt comes to an end.  (Stated differently, once the illness is cured, there is no further need for the medicine.)  However, in the absence of a “continuing contempt” there would be nothing to remedy and no need for a “remedial sanction.”  And if the sanction is not remedial, it will invariably be classified as a “punitive.”

    But see the anomalous case of State ex rel Kelley v. Kelley, 128 Or App 123, 874 P2d 1364  (1994), wherein the respondent (a practicing lawyer) had repeatedly violated his monthly obligation to pay child support.  Facing a contempt proceeding that sought imposition of remedial sanctions, he brought the arrears up to date so that at the time of trial there was no money owing (his next payment not due until two days later).  Having complied with the court’s prior order for payment of child support, there was no contumacious conduct occurring at the time of trial and therefore nothing to “remedy” and no basis for imposition of a remedial sanction.  The trial court, perhaps understandably frustrated with the situation and perhaps aggravated by the fact that respondent was a lawyer, was not inclined to let the respondent off the hook without doing something about the situation.  To resolve the dilemma, the court needed to have a presently-occurring continuing contempt, i.e., an illness looking for a cure.  So the trial court artificially created a continuing contempt by looking to the respondent’s past child support delinquencies and concluding that such would be repeated in the future.

    “Although at the time the judgment was entered father was not delinquent in his support obligation, in the light of the ongoing battle to compel his compliance with the terms of his support obligation, together with his repeated violations of the support order and the likelihood that he will continue to violate it, the contempt is properly characterized as ‘continuing,’ and a remedial sanction to encourage father’s future compliance is justified.”  128 Or App at 127. 

    And on that tenuous basis, the court imposed a penalty (a fine of $400, payable to mother, for each month in the future in which respondent fails to make the previously ordered $500 child support payment by the last day of month in which it is due) with a provision allowing the respondent to avoid the penalty by complying in the future with the court’s prior order.  In effect, the court adjudged the respondent guilty of a future contempt not yet committed and ordered the imposition of a punitive sanction in the event future contempt actually occurred.  Although intended “to encourage father's future compliance,” 128 Or App at 127, and notwithstanding his past violations, the fact remains that when the matter was before the court there was no money due and owing by father under the previously rendered child support order.

    The court’s action in Kelley also raises a number of due process problems.  For example, to presently impose a sanction for a future offense that has not yet been committed totally deprives the respondent of the presumption of innocence and the right to an adjudicatory trial as a prerequisite for imposing a penal sanction.

Time limitations

    Proceedings seeking to impose remedial or punitive sanctions for the willful failure to pay a support obligation must be commenced within 10 years of the act or omission constituting contempt, without regard to when the obligation became a judgment.  ORS 33.135(4) and (5).

Use of “probation” as a remedial sanction

    Pursuant to ORS 33.105(1)(d), upon finding a person to be in contempt on account of noncompliance with a prior court order, the court may attempt to remedy the contempt by imposing “an order designed to insure compliance, * * * including probation.”  

    However, when probation is ordered as the sanction imposed to remedy a presently-occurring contempt, the probation (like any other sanction imposed for the purpose of compelling compliance with a prior order of the court) must come to an end when compliance is attained.  Conversely, if a sanction imposed for the purpose of terminating a continuing contempt does not come to an end upon the contemnor’s own action of complying with the court’s original order (thereby purging the contempt), the sanction loses its character as remedial and becomes a punitive sanction. 

    Further, “that a determinate sentence is suspended and the contemnor put on probation does not make the remedy civil in nature, for a suspended sentence, without more, remains a determinate sentence, and a fixed term of probation is itself a punishment that is criminal in nature.” Hicks v. Feiock, 485 US 624, 639, 108 S Ct 1423, 99 L Ed 2d 721 (1988).

    Stated differently, once the medicine prescribed to cure the illness has worked and health has been restored, there is no longer any need to continue administering the medication.

    In Wynne and Wynne, 106 Or App 210, 806 P2d 723 (1991), defendant was found guilty of contempt for disobeying a support order.  Imposition of sentence was suspended and defendant was placed on five years’ probation with the condition that he pay the monthly child support ordered by the dissolution judgment plus a certain additional amount to pay off the arrearage.  There was  no provision in the judgment for defendant to purge himself of the contempt.  Defendant appealed.  HELD:  Reversed.  Citing Hicks, 485 US at 637, for the proposition that “if the sentence is a determinate one, then the punishment is criminal in nature,” the court concluded that placing the defendant on probation for five years constituted a criminal sanction.  “The * * * defendant was given a determinate sentence [five years’ probation] with no opportunity to purge the contempt.  Although the trial court treated the case as a non-criminal matter, it imposed a criminal penalty.”  106 Or App at 213.

    It is not infrequent, particularly in contempt proceedings involving nonpayment of child support, for the court, as a remedial sanction “designed to insure compliance with a prior order of the court,” to place the contemnor on probation for an indeterminate period of time, continuing for so long as the underlying support order continues to exist, conditioned on the contemnor’s making the support payments as previously ordered.  So long as the contemnor thereafter complies with the underlying support order, the sanction of probation simply continues, unabated and without end, there being no opportunity for the contemnor to purge the contempt and cause the probation to terminate.  When imposed as a remedial sanction, probation for an indeterminate period, with no opportunity to purge the contempt and terminate the sanction, is no different than probation for determinate period (as in Wynne and Wynne, id.).  Without  opportunity to purge the contempt and terminate the sanction, the sanction is punitive rather than remedial

    The other problem with using probation as a remedial sanction “designed to insure compliance with a prior order of the court,” is the question of what to do in the event to future noncompliance.  Summarily revoking the probation simply of the basis of the failure to make the support payments previously ordered (without an entirely new contempt action) would amount to a denial of due process rights.  Further, if the probation is revoked, what then?  Is the contemnor to be then incarcerated?   If so, the proceeding most certainly becomes punitive and loses its remedial classification..

    In sum, probation as a contempt sanction, whether for a fixed duration or indefinitely, cannot be classified as a remedial sanction without inclusion of a “purge provision.”  Such a sanction, without a purge provision, becomes a punitive sanction and, as such, may not be imposed unless federal constitutional protections are applied in the contempt proceeding.  See Hicks, 485 US at 632 (In proceedings for contempt of court, “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”).


    The use of contempt proceedings by private litigants and their lawyers as a debt collection device for unpaid past-due child support is problematical.  And given the panoply of other tools readily available for enforcement of child support obligations, private litigants and their lawyers would be well-advised to avoid contempt proceedings and implement one or more of the other available remedies.


Attorney at Law
521 S.W. Clay St., Suite 205
Portland, Oregon  97201
Phone:  503-224-8884
Fax:    503-226-1321