Retroactive Child Support; Criminal Contempt

Stop and say a prayer for the Guys, and in particular for their children. Having your parents go through divorce is bad enough; now add to that the indignity of having all your parents’ dirty laundry aired in public over more than four years, at the conclusion of which there’s real doubt whether either your Mom or your Dad is fit to be a parent.

You can read all about it at Pate v. Guy, Case No. 2031005 (Ala. Civ. App. December 30, 2005) and its companion case, No. 2040214 (opinion issued the same day). I’ll spare you the details and go straight to the two legal principles we can glean from these cases.

Principle #1 (from the first case, No. 2031005): If the children have been living with one party after the filing of a divorce complaint, and if the other parent has significant income and hasn’t been paying child support, the law may say the trial court has discretion not to award retroactive child support, but this is only true if the appellate court happens to think what the trial court did is fair. Any judge who wants to avoid being reversed (and what judge WANTS to be reversed?) would be well-advised to award retroactive support in these cases. This probably would yield the best result in most cases; it’s just the dishonesty of it that’s regrettable.

Principle #2 (from the second case, No. 2040214): When a court invokes criminal contempt (as opposed to civil contempt), no matter how egregious the conduct of the violator, the court has no jurisdiction to award attorney fees. It’s probably worthwhile to quote the appeals court’s explanation of the distinction between civil and criminal contempt:

In general, civil contempt seeks to compel compliance with a trial court’s judgment or order, while criminal contempt imposes punishment for failure to obey a judgment or order of the court. Rule 70A, Ala. R. Civ. P.; see also State v. Thomas, 550 So. 2d 1067, 1072 (Ala. 1989). An essential element of a finding of criminal contempt is that such [*4] a finding is intended to punish the contemnor, while a finding of civil contempt seeks to compel future compliance with court orders. See generally Chestang v. Chestang, 769 So. 2d 294 (Ala. 2000). Sanctions for criminal contempt are limited by statute to a maximum fine of $ 100 and imprisonment not to exceed five days. See Ala. Code 1975, § 12-11-30(5). On the other hand, sanctions for civil contempt may exceed those limits and may continue indefinitely until the contemnor performs as ordered . . . In an attempt to impress upon the mother the importance of following the visitation provisions in the divorce judgment, the trial court found the mother in contempt and sentenced her to 24 hours in jail. This is the very essence of criminal contempt. See Rule 70A, Ala. R. Civ. P., and Chestang, supra.

Although the appeals court ruled that the award of attorney fees for contempt was improper, it allowed the contempt finding itself to stand.

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