Ability to Pay Child Support Disputed in Memphis, Tennessee: State ex rel. Groesse v. Sumner

FactsMother and Father are the unmarried parents of Child.

In 2012, paternity was established and Father’s child-support obligation was set. By that time, Father had accrued an arrearage of over $26,000. A court-ordered payment plan was established.

The following year, Father’s child-support obligation was reduced, but the total arrearage had increased to over $32,000.

In 2014, Mother petitioned to have Father held in contempt for failure to pay child support.

After a hearing, Father was held in civil contempt of court and incarcerated until he paid $2600 to purge himself of contempt. Mother was also awarded over $3300 for attorney’s fees.

Father requested a de novo hearing before the juvenile court judge.

Meanwhile, Mother again petitioned to hold Father in contempt for failure to pay child support and the judgment for her attorney’s fees.

After a de novo trial before the juvenile court judge, the trial court found Father could pay his court-ordered child support and that his failure to do so was willful and intentional. The trial court found:

[Father] has [] an order that requires [him] to pay $800 a month in child support plus $50 a month on an outstanding arrearage. He has the present ability to make those payments. [Father] has spent more fighting the child support than has been owed since this hearing started up, so he’s clearly had the ability to pay.

Father was found in civil contempt of court and incarcerated until he made a purge payment of $8500. Mother was awarded a judgment for attorney’s fees of nearly $30,000.

Father appealed.

On AppealThe Court of Appeals affirmed the trial court.

Civil contempt claims based on alleged disobedience of a court order have four essential elements:

  • the order alleged to have been violated must be lawful;
  • the order alleged to have been violated must be clear, specific, and unambiguous;
  • the person alleged to have violated the order must have actually disobeyed or otherwise resisted the order; and
  • the person’s violation of the order must be willful.

In civil contempt, willful conduct is intentional or voluntary rather than accidental or inadvertent.

To hold a party in contempt for failure to pay child support, the court must also determine that the obligor could pay when the support was due. The burden of proof is on the contemnor to show the inability to pay.

downloadThe ability to pay means precisely what it seems to mean. The individual must have the income or financial resources to pay the obligation when it is due. Spending money on other bills or obligations does not absolve failing to pay court-ordered child support. Having the means to meet other financial obligations shows the ability to pay child support.

The evidence supported the trial court’s finding that Father was able to pay child support:

[T]he evidence does not preponderate against a finding that Father had financial resources but consistently placed paying the full amount of his child support lower on the priority list than other obligations. Notably, [the proof] demonstrated that Father and [his wife] purchased a new Chevrolet Tahoe for $46,000 in December 2015, incurring a monthly vehicle loan payment of approximately $800 at a time when Father insisted he was incapable of making an $850 child-support payment. Although Father testified that he and [his wife] were two months behind on their vehicle payment at the time of the rehearing, Father indicated no plan to reduce or eliminate this expense.

Finding no abuse of discretion, the trial court’s judgment was affirmed.

K.O.’s Comment: The Court’s reasoning follows State ex rel. Trisler v. Collins (having the means to meet other obligations shows the ability to pay child support) and Rutledge v. Kelly (one’s duty to pay child support is not excused by spending money on other obligations).

I will reiterate what the Court emphasized in Brown v. Brown, “The importance of a parent paying his or her court-ordered child support timely cannot be overstated.”

State ex rel. Groesse v. Sumner (Tennessee Court of Appeals, Western Section, January 18, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

One thought on “Ability to Pay Child Support Disputed in Memphis, Tennessee: State ex rel. Groesse v. Sumner

  1. And, as a practice tip, in child support criminal contempt cases, you can ask for a jury, but it can really piss off the judge. Hence, I don’t recommend it.

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