Collecting Amounts Owed for Support
Once you have been to court and received an order of support such as for child support or alimony, or received an order for the return of certain property, the next question becomes how do you insure that you will receive these funds. Many people who are ordered by a court to pay a certain amount will do so. However, there are also many people who do not. The people who do not may believe that they will never be caught not paying. Or, they may believe that the other party does not have the will to go to court and enforce the order.
Courts in Connecticut have several methods that allow you to collect your support payments.
Probably the best method to insure that you get paid is to obtain an Automatic Wage Witholding Order. Under such an order, the Court can order that the employer of the payor party take the support payment out of the payor’s pay check and send it directly to you. This method works well if the payor has a job. In this day and age, there are numerous people who don’t have a job. Also, many people are self-employed. If the payor is self-employed, in a very small business or is even working on his or her own with no employees, then this method won’t work. There must be a payroll to garnish, and self-employed people rarely have payrolls.
In some instances, if the payor spouse is behind on their support, the Internal Revenue Service can be enlisted to withhold the payor’s tax refund and give the amount owed to the payee. This requires a showing of some kind that the money is owed and has not been paid.
If you cannot avail yourself of any of the above, then you will have to go back to court and file a motion for contempt. A motion for contempt asks the Court to issue an order that the there was a specific order for payment and the payor has willfully not complied. If the Court finds that the payor was negligent in failing to comply with the order, then a Court will not make a finding of contempt. If the Court finds that the payor was not able to make the required payment because of some reason beyond his or her control, then the Court will not issue an order for contempt. The Court must find that the payor willfully refused to make payments that he or she knew were supposed to be made. If the Court finds that the payor lost his job or if business was so bad that he or she could not make the payments, then the Court will not make a finding of contempt.
The next question to ask in making a motion for contempt, is how much evidence do you need for the court to find that the payor was willful in failing to comply with the Court’s order. There are three levels of burdens of proof in the law. In some cases, you need only show by a preponderance of the evidence that a certain fact is true. A preponderance of the evidence merely means most of the evidence or the weightier of the evidence. The next level is to provide evidence that is clear and convincing the Court that a certain fact is true. Finally, there is the standard used in criminal cases which requires a showing that a certain fact is true beyond a reasonable doubt.
Recently, the Connecticut Supreme Court articulated a new standard for making a finding of contempt. In the case of Brody v. Brody, 315 Conn. 300 (2015), the Court stated that the standard for a finding of contempt in family cases is Clear and Convincing evidence. Prior to this, the standard for findings of contempt was a mere preponderance of the evidence standard. The Court chose to make this change for several reasons.
First, contempt proceedings are quasi criminal proceedings. In the law, we have a division in the types of cases heard before a court. We have criminal cases where a defendant can be put in jail if found guilty of a crime. All other cases are deemed civil cases. In a contempt proceeding in a civil case the Court has numerous remedies at its disposal to enforce the underlying order that has not been complied with. It may order that the non-complying party pay attorney’s fees to the other party. The Court may order the non-complying party to make arrearage payments in addition to the ongoing regular court order. Most important of all, the Court has the power to order that an individual be incarcerated for failure to make support payments. Because a party can be incarcerated if found in contempt, the Supreme Court agreed that a finding of civil contempt is quasi criminal in nature, and therefore deserves a higher standard of proof.
In fact, a hearing on a motion for contempt also requires that the defending party be accorded certain constitutional rights similar to those of criminal cases. The defending party has a right to be apprised of the claim against him or her and to have a hearing to defend himself. The defending party also has a right to be represented by an attorney and to call witnesses and present evidence to defend him or herself.
Second, the Court was also persuaded that the majority rule in most states was to require clear and convincing evidence for a finding of civil contempt. The majority rule refers to the rule implemented by other states in this country. The majority rule is that adopted by most states, and the minority rule is that adopted by less than half of the rest of the states.
The Brody decision was limited to cases of indirect contempt. Direct contempt occurs when a party violates a court order in the presence of the Court. An indirect contempt occurs outside of the presence of the Court. Contempt motions for failure to pay child support or alimony would be an indirect contempt, for the violation took place out of the presence of the Court.