Once entered, the Burden of Proof shifts, requiring the defendant/respondent to show why he or she should not be held in civil contempt of court.
Family law attorneys may refer to that person as the “contemnor.”
That traditionally has been a substantial burden, involving evidence of the ability to pay, and possibly more importantly, the inability to pay child support – Bill Powers, Charlotte Divorce Lawyer
Under the NC divorce laws, there cannot be a default judgment of sorts. The respondent contemnor may not be held in civil contempt by default.
Evidence must be introduced indicating the actual, present ability to pay child support. Indeed, the failure of the respondent to appear at the hearing is not deemed a “waiver.”
And as such, the family court judge is not relieved of the duty to make appropriate findings of fact that specifically address a present ability to pay.
Present ability to pay Child Support
A legal ruling by a District Court Judge in NC cannot be conclusory in nature without proper evidence before it. Conclusions of law, supported by sufficient findings of fact, must involve taking an inventory of sorts.
The Court must consider the responding party’s present financial condition.
Any such analysis of financial condition necessarily requires the present ability to pay. Changes in financial condition are therefore relevant and may indeed prove dispositive.
That can be frustrating, especially in circumstances where a substantial defense may be mounted by simply refusing to attend the hearing.
One would have to assume this will add to the complexity of family law litigation. It will be interesting to see how the trial courts interpret the gentle reminders of the Court of Appeal on child support and contempt issues – Bill Powers
What is a purge condition?
Anyone familiar with family court proceedings is familiar with compliance with a child support order and payment of the outstanding balance immediately prior to the hearing relating to the show cause contempt proceeding.
A civil order may be “purged” by coming into immediate compliance with the Court’s Order. In family court, upon a finding of willful contempt of court, the Judge normally sets “purge conditions,” providing the opportunity to purge the contempt.
Relative to contempt of court for child support, the judge is required to fully consider both sides of the present financial condition. A proper financial inventory demands balancing assets available to pay child support, income or lack thereof, and the reasonable needs of the responding parent.
That includes subsistence needs such as housing, food, use of a vehicle, and day-to-day living expenses. (FWSC – Food, Water, Shelter, Clothing)
The court must therefore also take into consideration income, the ability to work, and the willfulness of the lack of employment.
The family court judge must consider and balance both sides of the financial equation. The defendant’s living expenses are therefore an important part of any ruling on contempt of court for nonpayment of child support.
A responding parent’s reasonable and legitimate expenses are key considerations. The present ability to pay, to meet the purge condition (or purge conditions), requires balancing the remaining funds available after meeting the reasonable personal needs and expenses of the responding parent.
Ability to Work and Willful Unemployment
An absence of evidence is not necessarily the evidence of absence. The Court cannot draw a negative inference from the lack of evidence relative to the ability to pay.
The Court must have proper evidence before it. Lack of evidence will cause problems – Bill Powers, Family Law Attorney
Conclusions of law, predicated on improper findings, will be reversed by our appellate courts. The ability to work refers to the present ability to maintain a wage-paying job.
That does not necessarily mean one’s chosen profession or preferred method of employment. The court is the sole judge of the credibility of witnesses. Lack of credibility, standing alone, is likely not enough.
Charlotte divorce attorney – Bill Powers
If you have questions about past-due child support or a pending show cause Order in Mecklenburg County, please call now: 877-462-3841. You may also reach Bill Powers at Bill@CarolinaAttorneys.com