Recently R&B singer R Kelly was jailed for his failure to pay approximately $161,000 in child support. Anyone who has been watching the news recently knows that Mr. Kelly has a number of other legal problems; however, his current predicament begs the question, can one be sent to jail in Ohio for the failure to pay child support?
The short answer is “yes.” Under R.C. 2919.21 a person can be held criminally liable for the failure to support one’s spouse or one’s minor child (or physically handicapped child under twenty-one years of age). The failure to provide support is a first degree misdemeanor for a first offense but can be a fifth degree felony is support has not been provided for twenty-six (26) weeks in any one hundred four (104) consecutive week period. The severity of the offense rises if one has previous conviction under the same statute. A violation of R.C. 2919.21 is a criminal offense.
Conviction of a criminal offense requires due process and certain procedures. Presumably Mr. Kelly would be entitled to a trial in front of some kind of neutral factfinder, right? So how is it possible that Mr. Kelly arrived at Court one morning for a child support hearing only to be jailed? The answer through a Contempt Statute. In Ohio (every state has different statutes) R.C. 2705.02 defines acts which may constitute contempt of Court, and states that: “A person guilty of any of the following acts may be punished as for contempt: “(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer.”
Each Court has to have the power to enforce their own rules, orders and judgments. Absent such power, why have courts of law at all? When a person disobeys a known court order, the Court has the power to either punish the disobedient party or coerce the disobedient party into compliance with the Order. The disobedience of a Court’s power is called “contempt of court.”
In Ohio, Contempt can be characterized as either direct or indirect. Direct contempt occurs when a party engages in conduct in the presence of the court that interfere with the administration of Justice. Indirect contempt occurs when a party engages in conduct outside the presence of the court that demonstrates a lack of respect for the court or its lawful orders. Screaming at the Judge in open court that he is a moron will likely constitute “direct” contempt while the failure of a parent to pay the child support that they have been ordered to pay by the same Judge is “indirect” contempt.
Courts may further characterize contempt as criminal or civil, depending upon the nature of the contempt sanctions. Criminal contempt imposes sanctions that are punitive in nature, and are designed to punish the party for past failures to comply with the court’s order. A criminal contempt sanction is akin to a jail sentence. A person is found to be in contempt of court and is sentenced to ‘X” days in the county jail for their conduct. While the Judge could decide to lessen, suspend, or even vacate all or part of the sentence, the individual in contempt is at the mercy of the Judge. For example, if Joseph is disrespectful to the Judge throughout his criminal trial and disruptive of the proceedings after being ordered to be quiet; the Judge could impose a jail sentence for Joseph’s disobedience of her order for him to be quiet. After the trial is over, the Judge doesn’t really care anymore if Joseph is quiet. He’s committed an act of contempt and the Judge can punish him for it.
Civil contempt is remedial or coercive in nature. The party in contempt is said to “carry the keys of his prison in his own pocket *** since he will be freed if he agrees to do as so ordered.” Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253. The goal of civil contempt is to bring about a change in behavior. An example (albeit unjust) of civil contempt is the 2005 incident where New York Times reporter Judith Miller was jailed for 85 days for refusing to reveal her source who “leaked” the name of CIA spy Valerie Plame. (Spoiler; it was Scooter Libby). The Court, whether justified or not, wanted Miller to answer certain questions and ordered her to do so. She refused and was sent to jail in an attempt to change her behavior. Failure to pay court ordered child support constitutes civil contempt.
In a case of civil contempt, a person can be freed from jail by complying with “purge” conditions. Often in a contempt matter regarding child support, the purge condition is that the party in contempt pay a certain amount toward their child support balance, or to bring their arrearage current. In Mr. Kelly’s case, he was ordered to pay approximately $161,000.
Jailing a person for civil contempt for failure to pay child support is rightly seen as a last resort. The goal is not to punish the obligor, but rather to get him or her to make the payment. A person in jail is unlikely to earn significant money, yet often the impending threat of jail time may cause family members and friends of the child support obligor to cough up money to help them out as appears to be the case with Mr. Kelly.
The inability to pay is an affirmative defense to both criminal nonsupport of dependents under R.C. 2919.21 and civil contempt for failure to pay support. One should beware, as such a defense is not as easy to make out as one would suspect. A court is likely to require documentation as to your income and your monthly expenses. Does one have cable tv, a cell phone, home internet access, a car payment or money to eat at restaurants? If so, one should be prepared to explain how one affords such “luxuries” when they are violating a court order to support a child or spouse. Effort may also count. If one owes $300 a month, a Judge may look more kindly upon a person paying $150 than a person who pays nothing.
Every support matter is different. If you are facing contempt for your alleged failure to pay child or spousal support, call my office for a free consultation.