Posted by: koherston | April 7, 2011

Child Support and Contempt: Are You Entitled to a Court-Appointed Lawyer in Tennessee?

The U.S. Supreme Court recently heard oral argument in a child support case. The issue? Whether an indigent party is entitled to a court-appointed attorney in a civil contempt hearing when faced with the prospect of being sent to jail for violating a court order.

The case is Turner v. Rogers. Here’s what happened:

In January 2008, Michael Turner appeared in a South Carolina family court for failure to pay his court-ordered child support.  Mr. Turner was not represented by counsel.  At the time of the hearing, he owed nearly $6,000 in child support and had not made a payment in a year and a half.  Mr. Turner testified that his failure to pay was due to incarceration, drug addiction, unemployment, and injury.  The trial court found him to be in willful contempt of the child support order and sentenced him to twelve months in jail, which sentence he could purge himself of and avoid by full payment of his child support arrearage. In other words, if he paid the $6,000 he owed, he’d be released immediately. This is a remedy for civil contempt.

For more on the characteristics and differences between civil contempt and criminal contempt in Tennessee, see my earlier blog post, titled “A Primer on Contempt in Tennessee.”

Mr. Turner appealed to the South Carolina Supreme Court, arguing the Sixth and Fourteenth Amendments to the U.S. Constitution entitled him to the right to court-appointed counsel before being sentenced to one year imprisonment for civil contempt. The South Carolina Supreme Court disagreed.

In his brief, Mr. Turner argues that the same considerations that have led the Court to hold in other contexts that appointed counsel is required for a defendant who could be incarcerated apply to his case:  he needed an attorney to help him avoid incarceration by demonstrating that he could not afford to pay his child support obligations.  This conclusion, he continues, is also bolstered by due process considerations:  the risk of an erroneous outcome, with a resulting prison term, is high, particularly when compared with the state’s “minimal financial interest in refusing to provide counsel” and its complete lack of “interest . . . in maintaining a de facto debtors’ prison for child-support obligors who genuinely cannot pay.”

The mother argues there is no constitutional requirement that appointed counsel be provided whenever a defendant faces the prospect of incarceration.  Such a requirement finds no basis in the Sixth Amendment, which refers only to “criminal prosecutions”; moreover, she warns, requiring appointed counsel in civil cases could “blur the venerable distinction between criminal and civil contempt, inviting extension of a host of criminal procedures to various civil cases, such as immigration detentions.”

On March 23, 2011, the U.S. Supreme Court heard oral argument. A transcript can be found here. According to the New York Times’ report, the Justices struggled with the implications of their ruling.

Justice Kennedy told the lawyer on the other side, “there are thousands of these hearings around the country.” A blanket ruling requiring the appointment of lawyers would mean, he said, that “we’re going to change the entire landscape of domestic relations proceedings. . . .”

The point of civil contempt is coercion rather than punishment, and judges like to say that people held in such circumstances hold the keys to their own jail cells. All they have to do to be released is comply with the court’s order.

But Mr. Turner said he was too poor to pay what he owed, which turned his incarceration into pure punishment. He said a lawyer could have helped him convince the judge that jailing him in the circumstances was impermissible.

In a series of decisions starting with Gideon v. Wainwright in 1963, the Supreme Court has held that poor people facing the loss of liberty for crimes must be provided with lawyers. But those decisions were rooted in the text of the Sixth Amendment, which concerns only criminal proceedings.

A majority of states do provide lawyers to people in Mr. Turner’s situation, as a matter of state law. The question in the case argued Wednesday, Turner v. Rogers, No. 10-10, was whether court-appointed lawyers are required in civil contempt cases as a matter of the due process protections of the federal Constitution. . . .

Mr. Bibas cautioned the justices against disrupting the informality and effectiveness of child support proceedings in which neither side, he said, tends to be represented by a lawyer.

He added that requiring states to provide lawyers might cause them to decide not to pursue deadbeat parents at all. New Jersey, he said, had stopped trying to enforce child support orders through civil contempt after its Supreme Court recognized a right to counsel.

Justice Ginsburg questioned the wisdom of that financial calculation, noting that it costs money to lock people up, too.

While a majority of states may provide court-appointed lawyers to indigent parties facing civil contempt in child support cases, Tennessee does not. Thus, the U.S. Supreme Court’s ruling in this case has the potential to significantly change how child support cases are handled in Tennessee. Stay tuned to this blog for updates once this case is decided.

UPDATE (4/24/11): In a comment below, an astute reader from the Shelby Co. Bar takes issue with my statement that indigent parties facing civil contempt in child support cases in Tennessee are not entitled to court-appointed lawyers. Are they? Let’s examine the arguments.The reader correctly notes that Tennessee Supreme Court Rule 13(1)(d)(1) says indigent parties are entitled to court-appointed lawyers in “[c]ontempt of court proceedings in which the defendant is in jeopardy of incarceration.” But what does “jeopardy” mean in this context?The term “jeopardy” has a specific legal meaning different from its ordinary meaning in common language. The Fifth Amendment to the U.S. Constitution says “[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.” This prohibition against being tried twice for the same criminal offense is commonly called “double jeopardy.” Likewise, “jeopardy” has a specific legal meaning in the context of contempt proceedings because the Fifth Amendment prohibition against double jeopardy applies to criminal contemptors but not civil contemptors. (For an explanation of the other differences between civil contempt and criminal contempt in Tennessee, see my earlier blog post, “A Primer on Contempt in Tennessee.”) Thus, while Tennessee Supreme Court Rule 13 certainly guarantees court-appointed lawyers to indigent contemptors facing criminal contempt (and “jeopardy”), what about civil contempt?

The Tennessee Attorney General has opined that “an indigent defendant in an action to enforce a child support obligation has a right to counsel when there is a threat of incarceration within the meaning of Tennessee Supreme Court Rule 13(d).” See Tennessee Attorney General Opinion 04-142 (Sept. 1, 2004). While this would seemingly include civil contempt because of the “threat” of incarceration, the qualification about a threat of incarceration “within the meaning of” Rule 13 could mean it only applies when “jeopardy” attaches, i.e., criminal contempt. The Attorney General’s Office does not explain any further. Instead, the Attorney General’s Office discusses how the Title IV-D program requires the provision of legal services before stating it is “unaware of any other statutory or constitutional requirement that counsel be provided to parents in child support cases.”

So if the Rule is arguably unclear, how does one explain the fact that courts in Memphis, Knoxville, and other large cities in Tennessee routinely appoint taxpayer-funded counsel to indigent parties accused of civil contempt? I checked with a Child Support Magistrate in a large metropolitan city in Tennessee who told me each county has its own policy on whether civil contemptors are entitled to court-appointed lawyers. This particular Magistrate said she routinely appoints lawyers to represent civil contemptors in child support matters, as do several other Magistrates in larger cities. In smaller, rural counties, however, the Magistrate said court-appointed lawyers are commonly not provided to civil contemptors. If Rule 13 entitles court-appointed counsel to civil contemptors, how the entitlement to counsel be a county-by-county determination?

This is a total guess, but one explanation for this disparity might be the Title IV-D program. In larger cities like Memphis and Knoxville, the State contracts with a law firm to provide representation to parents who receive certain government benefits. The firm is commonly referred to as “Child Support Services.” The IV-D program requires that legal services be provided custodial and non-custodial parents alike in child support matters. In smaller, rural counties where Child Support Services does not have a presence (i.e., the overwhelming majority of the State), child support civil contempt matters are prosecuted by an Assistant District Attorney. In those counties, indigent civil contemptors are never represented by a public defender and oftentimes do not receive a court-appointed lawyer, either. In fact, public defenders are expressly prohibited from representing the indigent in child support contempt cases. See Tennessee Attorney General Opinion 98-092 (April 15, 1998). Is there some legal basis for this seeming correlation?

Thus far, my brief research on this question produced inconclusive and conflicting results. I called the Administrative Office of the Courts for clarification. They confirmed they do pay fee claims for lawyers appointed by courts to represent civil contemptors but acknowledged that some judges appoint counsel in civil contempt matters and some do not. Which brings me back to where I started, i.e., totally confused. I am certain Tennessee and every other state will examine this issue closely once the U.S. Supreme Court issues its opinion in Turner v. Rogers so stay tuned! In the meantime, if anyone from the Administrative Office of the Courts or Child Support Services wants to chime in on this issue, please do so in the comments below.

Turner v. Rogers, Docket No. 10-10, U.S. Supreme Court (2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.


Responses

  1. […] Child Support and Contempt: Are You Entitled to a Court-Appointed Lawyer? (herstontennesseefamilylaw.com) […]

  2. […] this year, I blogged about oral argument in a U.S. Supreme Court case, Turner v. Rogers, concerning whether an indigent party facing incarceration for civil contempt for […]

  3. Janis…. I am in Shelby County and just called the Juvenile Court in regards to filing a contempt of court for child support and they told me that there is no court appointed attorney in such cases. Theresa

  4. Review Pasqua V Counsel. In particular seek the website of Dave Perry Davies Esq for complete details.

    The NJ case settles requiring the appointment of counsel for indigent parties under the threat of incarceration.
    First lets underscore the facts in most transference of wealth cases. We DO Not use the term “child support” because it is derogatory in nature as it immediately implies that some individual had to be told by the courts that they must support their children post divorce or separation. (as if they don’t want to or don’t know this already). It is an anomaly to find a parent who is gainfully employed and out right refuses to provide for their children. Usually there are parents who have transference of wealth payment that exceed their income and eventually loose their equity in any assets. The overbearing question comes to mind….Then why cant the transference of wealth payments somehow be set at an affordable amount??

    Lets put this down for a moment and focus on Title IV -D of the Social Security Act. Every court across the county receives dollar for dollar matching funds from the federal government for any monies paid via court collection services (AKA probation enforcement of child support). In NJ it is common practice and mandated to maximize the transference of wealth between the parties via probation department. Therefore, it is most common to see child support, alimony, attorney fees, mediation/arbitration fees, psychologist fees, parent coordinator fees, or anything the judges can fathom. This is the primary reason why judges allow certain lawyers to act as rainmakers on their cases. A) it carries political favors during elections and appointments and B) it helps increase the billable dollars on the case , hence transference of wealth when this is put in court collection services. Additionally, judges will tend to double dip when applying support calculations. Essentially , Title-IV-D has been corrupted and everyone is keeping hush hush because it brings in large amounts of money from the Feds.

    Do we sense a conflict of interest here? You be the judge!

    If the courts really wanted to solve problems the focus would be on parental corporation mandated with strong laws removing support payments and or custody when parental alienation occurs . Thus creating a positive post divorce family environment.

    When the court sits back and allows one party to make false claims of subjective domestic violence, or false clams to child protective services or mental health services in order to use these laws as a weapon against the other party instead of the shield they were designed for it amounts to complete family destruction and elimination of any possible relationship with the children and a parent. The courts allow this because again it drains the families net worth and moves the money into the system or into the collection services realm where the court receives matching dollars.

    Secondly, limiting the amount of fees that can be charged by attorneys and other professionals that surround the industry.for marital dissolution.


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