Heavican, C.J.
A father appeals from an order of civil contempt for failure to pay child support. He was found indigent for purposes of appointment of counsel in the contempt proceedings. He asserts that he did not willfully disobey the support order. Further, he argues that the purge plan set forth in the contempt order is impossible to perform, making it a punitive rather than coercive sanction. We affirm.
In a paternity action filed by the State due to the involvement of the "Title IV-D Division"
Kyle was ordered to pay $230 in child support per month beginning on December 1, 2015. The amount of Kyle's monthly child support obligation was established in accordance with the child support guidelines. The district court referee calculated that Kyle was capable of earning $8 per hour and of working 40 hours per week, for a total monthly earning capacity of $1,387. By failing to respond to the State's request for admissions, Kyle was deemed to have admitted this earning potential. Attached to the referee's report was evidence that Kyle had earned $4,306.90 working at a roofing company from October to December 2014 and had earned $3,578.62 working there from July to September 2014.
Kyle did not attend the hearing at which evidence was submitted pertaining to paternity and child support, and his counsel withdrew. Kyle did not appeal from the child support order.
On June 7, 2016, the court issued an order for Kyle to appear at a hearing scheduled for July 7 and show cause why he should not be in contempt for willfully failing to comply with the December 2015 order. The order to appear required Kyle to bring to the hearing his income tax returns for the past 3 years, as well as his last three wage statements. Kyle was appointed counsel on July 8, 2016, upon a finding of indigency. On September 12, the court issued another order to appear, at a hearing scheduled for November 2, on the order to show cause.
Kyle appeared at the November 2, 2016, hearing, represented by his appointed counsel. At the hearing, the State introduced a certified copy of a history of Kyle's payments to DHHS. The document demonstrated that Kyle had never made payments on the December 2015 order and that he was $2,551.59 in arrears.
Kyle did not submit income tax returns, wage statements, or any other financial documentation. The only evidence presented by Kyle at the hearing was his own testimony. Kyle testified that he was unemployed. Kyle stated that his "last good job" was working as a "roof loader" for the roofing company. That job ended in November 2015 when he was laid off for the winter.
Kyle testified that he had been applying for three jobs per week for the past 2 months, as required by a workforce development program he was participating in. The most recent jobs he applied for were at a supermarket, a home improvement store, and a discount department store. Kyle explained that he had not applied for work at a fast food restaurant or for other food service work, because he was still "trying to get [his] food handler's permit to go that route."
Kyle refused to describe how many and what jobs he had applied for in the approximately 10-month period between the November 2015 layoff and beginning the workforce development program. After repeated evasiveness on Kyle's part, the court instructed him to "calm[ ] down" and "listen carefully" to the State's questions. But Kyle still refused to describe in detail his search for employment, stating, "I'm not gonna sit here and just keep beating around the bush about I'm not trying to get a job or this or that."
Kyle stated that he had done some subcontracting work since being laid off at the roofing company. He did not say how long he had worked as a subcontractor, nor how much he had earned.
Kyle testified that he paid $506 per month for rent and utilities. He spent an unknown amount on cigarettes. He also had a third child, a 6-month-old daughter, to support.
Kyle explained that he had not paid child support for Mariah and Renee because he was struggling financially. Kyle elaborated that during the times that he was employed as a subcontractor, it was not "that much money or that much work." What money he had made "[p]robably" went toward his rent and utilities. Beyond Kyle's odd jobs, the mother of Kyle's 6-month-old daughter had been paying their rent, utilities, and other expenses with her Social Security income. That relationship had recently ended, however, and Kyle testified that he had "no money" at the time of the hearing.
Kyle did not clearly indicate whether he had applied for or received unemployment benefits at any point since he was laid off in November 2015. He testified that he was not receiving any assistance at the time of the hearing.
Kyle expressed that the amount of the support order was too high. Kyle indicated that the amount of the support order may have been set too high because he had failed to attend the paternity hearing in December 2015. He claimed he had missed the hearing because he did not receive the paperwork informing him of the court date. Though Kyle claimed he had since brought the amount of the child support order to the court's attention two or three times, there is no evidence that Kyle moved for modification of the order.
Kyle did not deny being aware of the December 2015 child support order as of its effective date. He specifically acknowledged that he was aware of the child support order, though his testimony was imprecise as to when. He said:
Kyle did not assert that ignorance of the order was the reason for his failure to pay child support.
The court found Kyle in willful contempt of the December 2015 order. In its written contempt order, the court specifically found that during the period applicable to the contempt citation, Kyle had the ability to pay the support ordered. Pursuant to the contempt order, Kyle was committed to 60 days' jail time, to be suspended as long as he paid to the clerk of the court "$230.00 a month on current child support and $100.00 [a month] on arrearage, commencing January 1, 2017." In the event that Kyle complied with this payment schedule for 18 months, he would be purged of contempt. In the event commitment was issued as a result of noncompliance, he would be released and purged of contempt upon payment of $1,000. The court did not set forth an explicit finding that Kyle was at that time able to pay the
Kyle timely appeals the contempt order.
Kyle assigns that the district court abused its discretion in (1) finding him in civil contempt; (2) imposing an unreasonable, arbitrary, capricious, and punitive sanction; and (3) setting for the purge plan payment amounts that were impossible to perform.
In a civil contempt proceeding where a party seeks remedial relief for an alleged violation of a court order, an appellate court employs a three-part standard of review in which (1) the trial court's resolution of issues of law is reviewed de novo, (2) the trial court's factual findings are reviewed for clear error, and (3) the trial court's determinations of whether a party is in contempt and of the sanction to be imposed are reviewed for abuse of discretion.
Though the ability to pay the purge amount is a factual question that we review for clear error, whether the facts result in a due process violation is a question of law.
Kyle appeals from a contempt order imposed to enforce the prior judgment of paternity and child support.
We first address whether the court clearly erred in finding that Kyle's violation of the child support order was willful. Civil contempt requires willful disobedience as an essential element.
It is undisputed that the State made such a prima facie showing that Kyle was delinquent in his court-ordered child support by providing a certified copy of payments, balances, and arrearages maintained by the Title IV-D Division of DHHS.
Contrary to the assertions of Kyle's attorney on appeal, Kyle did not indicate at the contempt hearing that he was ignorant of the fact that he was violating a court order. The only testimony regarding Kyle's lack of knowledge related to his failure to attend the paternity hearing. Kyle's testimony that he was confused at some point about where he was supposed to send his payments did not rebut the presumption of willfulness; instead, it demonstrated his knowledge of the support order.
Neither do we find merit to Kyle's argument that the district court erred in concluding that it was possible to comply with the support order. Kyle argues that the district court erred in finding his conduct willful because there was no evidence that he was able to pay the court-ordered child support. But the State presented evidence establishing a presumption that Kyle was able to comply with the 2015 order when it made a prima facie showing that the court-ordered child support was delinquent.
Other jurisdictions hold under either common law or a statutory presumption that a child support order calculated in accordance with applicable guidelines creates a presumption that the parent was able to pay the amount so ordered during the time period subject to contempt.
The Nebraska Court of Appeals applied a similar presumption in In re Interest of Noelle F. & Sarah F.
The best way to rebut the presumption of an ability to pay established by a child support order issued in accordance with the Nebraska Child Support Guidelines is evidence to demonstrate a change of circumstances. Though not decisive in a contempt proceeding, procedures exist for parents whose situation has changed to timely file a complaint for modification of the child support order pursuant to Neb. Rev. Stat. § 42-364 (Reissue 2016) or to ask DHHS to consider referring the child support order to the county attorney or authorized attorney for filing an application for modification under Neb. Rev. Stat. § 43-512.15 (Reissue 2016).
Kyle failed to demonstrate a change of circumstances defeating the presumption of his ability to pay in accordance with the support order. Viewed in the light most favorable to the prevailing party, Kyle's unsupported claims of unemployment and disability stated nothing new or different. Other than his testimony that he had applied for three jobs per week for the past 2 months with no success, Kyle did not present any evidence that his ability to earn $8 per hour and work 40 hours per week had diminished since the date of the support order. Instead, he was evasive when asked to specify how many jobs and what kind of jobs he had applied for during the 11 months he failed to pay child support, and none he described appeared to be in a field he had experience in. Given that Kyle was working as a roof loader with the same alleged disabilities until his seasonal layoff in November 2015, Kyle failed to adequately explain why he has not since sought employment in a similar field.
Kyle's testimony that he suffered disabilities that diminished his earning capacity was simply as follows: "I was actually taking on some jobs through a subcontractor subcontracting work and finishing up some work there. But physically with my disability and this and that, I try to do things hands-on so —." Kyle presented no medical documentation or expert testimony supporting his assertion that he suffered from reading and writing disabilities and "a back problem and a neck problem" which prevented him from earning income sufficient to pay his child support obligations.
Furthermore, as this testimony illustrates, Kyle was vague as to the extent he had actually earned income doing subcontracting work during the 11 months that the support order had been in effect. Kyle failed to comply with the court's prior order
Triers of fact have the right to test the credibility of witnesses by their self-interest and to weigh it against the evidence, or the lack thereof.
We turn next to whether the court erred in setting a purge amount in excess of Kyle's present ability to pay, thereby making the sanction of incarceration punitive. A criminal or punitive sanction is invalid if imposed in a proceeding that is instituted and tried as civil contempt, because it lacks the procedural protections that the Constitution would demand in a criminal proceeding.
When a purge order involves payment of money, the sum required to purge oneself of contempt must be within the contemnor's ability to pay within the time period provided in the order, taking into consideration the assets and financial condition of the contemnor and his or her ability to raise money.
Though related and involving similar evidence, the due process question
We reiterate our recent holding in Sickler v. Sickler
While the district court stated in its order that Kyle had the ability to pay the support obligation, it failed to explicitly find that Kyle had the present ability to comply with the contempt order. Kyle does not assign as error the court's failure to make a specific finding regarding his ability to comply with the contempt order, however. And we find no plain error, because the record supports the court's implicit conclusion that Kyle failed to prove an inability to comply.
It is the contemnor who has the burden to assert and prove the inability to comply with the contempt order as a defense to incarceration.
As already discussed, the evidence suggested that Kyle was able to work as a roof loader despite his claimed disabilities. The district court did not find credible Kyle's testimony to the contrary.
Kyle's evidence that he was unable to comply consisted of his self-serving and vague testimony that he had unsuccessfully applied for work during the prior 2 months. The only specific testimony regarding Kyle's recent attempts to gain employment were that he had applied for three jobs per week and that his most recent three applications were in retail — a
Furthermore, although Kyle testified that he did not own a vehicle or his home, and that he had "no money," Kyle failed to make a full accounting of his assets. Instead, he disobeyed the court's order to produce his tax documents.
Finally, Kyle presented no evidence whatsoever of an inability to borrow sufficient funds to comply with the purge order.
It is true that the district court found Kyle indigent on July 8, 2016, for purposes of the appointment of counsel. Kyle relies on this finding in asserting that it was impossible for him to pay the purge amount. But the inability-to-pay threshold for determining that the contemnor lacks the keys to his or her own jail cell is higher than the indigence threshold for appointing counsel.
Neb. Rev. Stat. § 29-3901(3) (Reissue 2016) defines indigent as "the inability to retain legal counsel without prejudicing one's financial ability to provide economic necessities for one's self or one's family." A court may find indigency for purposes of appointment of counsel based alone on a situation where expenses exceed income, and a person is not required to prejudice one's financial ability to provide economic necessities for oneself or one's family in order to be determined indigent for that purpose.
In contrast, as stated, an inability to comply with a purge order entails having exhausted all assets and opportunities to borrow sufficient funds.
We read the contempt order as including the $230 monthly support obligation as part of the purge amount. It may have been the court's intention to impose as the purge amount $100 monthly in arrearages and to simply reiterate that Kyle must continue his underlying monthly support obligation during that time. But that does not appear on the face of the order to
We find no merit to Kyle's claim that the contempt order impermissibly imposed a criminal or punitive sanction in a civil proceeding.
There is no merit to Kyle's assignments of error challenging the underlying finding of contempt and the reasonableness of the purge amount. We affirm the order of contempt.
AFFIRMED.
Wright, J., not participating.
