Broke man showing empty pockets

We’ve written about this before – simply proving that the other side failed to pay court-ordered support is not sufficient for contempt of court. The court must also find that he had the ability to pay during the time he failed to pay, and, just as important, that he has the present ability to pay the arrears, and thereby purge the contempt.

In Mills,1In re: Marriage of Mills (Colo.App. No. 20CA1721, Aug. 19, 2021) (Unpublished Decision). the parties signed a separation agreement at dissolution, whereby the father would pay the mother $2057/mo child support plus $5000/mo non-modifiable maintenance.

At dissolution, the father was in the military, earning $14K/mo. A few years later, he had been discharged, and was earning just $2500/mo, so the trial court granted his motion to modify child support, ordering a reduction from $2057 to $628/mo, and ordering him to pay $12,920 in support arrears. (Father did not seek a maintenance modification, as maintenance was non-modifiable)

Father’s arrears continued to grow – to $3584 child support, and a whopping $241,120 maintenance, so the mother later filed a remedial contempt of court action against him. The court found the father in contempt, as he had received more than $228K in the prior 3 years, so had both the ability to pay the obligations when they arose.

The problematic part of the contempt order, however, was the court order for the father to pay almost $275K in arrears within 120 days, under threat of punishment for remedial contempt if he did not comply. The father appealed, and the Court of Appeals reversed.

Contempt Requires Past Ability to Pay and Present Ability to Pay

The Court of Appeals discussed a long line of cases on ability to pay:

“the court must specify the means by which the contemnor may purge the contempt and find that the contemnor has the “ability to perform the acts required to purge the contempt. A contemnor’s past or future ability to comply with the order is insufficient to show a present ability to comply.

Thus, the court must make two findings regarding the contemnor’s ability to comply — one supporting the contempt finding (that the contemnor was capable of complying with the underlying order) and a second justifying the imposition of the remedial sanctions (that the contemnor has the ability to purge the contempt at the time of the sentence). The requirement that the contemnor have the present ability to comply applies even if the contemnor not only disobeyed the court’s prior order but also transferred assets to avoid complying with the order.”

Mills.2In re: Marriage of Mills, ¶¶ 10-11 (Colo.App. No. 20CA1721, Aug. 19, 2021) (Unpublished Decision) (Cleaned Up).

But once the moving party makes a prima facie showing, the burden of proof shifts to the contemptor to prove inability to comply with the order. Father claimed that he had no assets to his name, and therefore had no present ability to comply. The Court of Appeals agreed with him in part.

Ability to Pay means keys to the jail cellAbility to Pay means keys to the jail cell

The appellate court noted that the father had sufficient evidence to prove he no longer had about $70,000 of the $228K in funds he had received during the prior 3 years, and after other adjustments, the father should have had the present ability to pay $145,000. Accordingly, that should have been the sum ordered to purge the contempt, not the full $275K owing.

It is often said that in a remedial contempt, the party in violation (i.e. the “contemptor”) holds the keys to the jail cell, since all he has to do to avoid jail is comply with the order. But necessarily that means the purge clause to avoid jail must be something he is capable of complying with – hence the requirement that the court find he has the present ability to pay.

Contempt Finding Still Stands

While the appellate court set aside the sanction that the father must pay $275K within 120 days, it denied the father’s request to vacate the contempt finding itself:

“A finding of contempt, however, is separate from the imposition of sanctions. And father does not develop any argument to contest the magistrate’s finding of contempt — that he violated the order to pay monthly maintenance and child support.”

Mills.3In re: Marriage of Mills, ¶ 28 (Colo.App. No. 20CA1721, Aug. 19, 2021) (Unpublished Decision) (Cleaned Up).

The father did not dispute that he had violated the support order (for $628/mo child support and $5000/mo maintenance), nor did he contest the trial court’s finding that he had the ability to comply with that order at the time he went into arrears.

So overall, while the case was remanded for the specific sanction ordered to be reconsidered, the father was still in contempt, and, judging by the court of appeals findings, is likely looking at a sanction that he pay $145K rather than $275K to avoid jail.

The takeaway? Yet again, the court of appeals reinforces the necessity of a purge clause, and unless the contemptor has the present ability to pay the arrears, he has no ability to pay, and therefore no ability to comply with the order and purge his contempt.

Maintenance & Support Arrears Still Owing

It is important to distinguish between a contempt sanction (i.e. how much an obligor must pay to avoid prison), and the actual arrears. Assuming the trial court did order the father to pay just $145K of the $275K owing based upon his ability to pay, that does not mean the missing $130,000 is simply forgiven. That arrearage, plus any outstanding interest, is still owing, but the mother will have to enforce it through other means (e.g. judgment, lien, garnishing pay, etc), rather than through contempt.

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