United States Supreme Court finds that indigent defendant is not entitled to appointed counsel for child support civil contempt proceeding but still vacates South Carolina Supreme Court judgment of civil contempt

Posted Monday, June 20th, 2011 by Gregory Forman
Filed under Alimony/Spousal Support, Child Support, Contempt/Enforcement of Orders, Jurisprudence, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, United States Supreme Court Decisions

The June 20, 2011 United States Supreme Court opinion in Turner v. Rogers, 131 S.Ct. 2507 (2011), will radically alter the way the South Carolina Family Court handles child support (and alimony) enforcement.  It’s about time.

Turner’s challenge before the United States Supreme Court regarded the South Carolina Supreme Court’s determination that he was not entitled to a court appointed attorney to defend a claim of civil contempt.  I though the better challenge to the way South Carolina handles child support collection was that it confuses civil contempt findings with criminal contempt findings.  I have complained about the way that the South Carolina Family Courts handle child support enforcement because I believe our courts have, for too long, treated contempt as civil without finding an actual ability to comply.  However, I thought that Turner’s challenge was unlikely to succeed because he was challenging the wrong issue.  The United States Supreme Court opinion in Turner validates my belief that an indigent support obligor is not necessarily entitled to a court appointed attorney to defend a claim of civil contempt but that such obligors are entitled to more due process than the South Carolina Family Courts have routinely provided them.

Even though Turner did not directly challenge the mechanism by which he was found in civil contempt, the United States Supreme Court, relying upon arguments raised in an Amicus Curiae brief filed by the United States Department of Justice, found that Turner’s incarceration violated the Due Process Clause.  It made this finding based upon the same concerns I had previously noted regarding the way our state handles support collection.  As the United States Supreme Court opinion notes:

Given the importance of the interest at stake, it is obviously important to assure accurate decision making in respect to the key “ability to pay” question. Moreover, the fact that ability to comply marks a dividing line between civil and criminal contempt reinforces the need for accuracy. That is because an incorrect decision (wrongly classifying the contempt proceeding as civil) can increase the risk of wrongful incarceration by depriving the defendant of the procedural protections (including counsel) that the Constitution would demand in a criminal proceeding. And since 70% of child support arrears nationwide are owed by parents with either no reported income or income of $10,000 per year or less, the issue of ability to pay may arise fairly often….

The record indicates that Turner received neither counsel nor the benefit of alternative procedures like those we have described. He did not receive clear notice that his ability to pay would constitute the critical question in his civil contempt proceeding. No one provided him with a form (or the equivalent) designed to elicit information about his financial circumstances. The court did not find that Turner was able to pay his arrearage, but instead left the relevant “finding” section of the contempt order blank. The court nonetheless found Turner in contempt and ordered him incarcerated. Under these circumstances Turner’s incarceration violated the Due Process Clause.

Citations omitted.

To my knowledge no other state handles support collection in the manner South Carolina has handled it and myriad pro se obligors have rightly complained about being incarcerated for alleged “civil” contempt when they did not have the ability to pay the full amount to effectuate their release.  The days of the South Carolina Family Court’s routine denial of due process in its incarceration of delinquent child support and alimony obligors until they pay the full amount owed, without any finding that these obligors have the ability to pay that full amount, should be at an end.  If the United States Supreme Court majority had to rely upon an issue raised in an Amicus Curiae brief to reach this result (the four dissenters would not have reached this issue because it wasn’t raised in the lower courts), I do not bemoan this detour from the normal rules of appellate jurisprudence.