as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am
1.1 A bill for an act 1.2 relating to family law; providing for enforcement of 1.3 child support and maintenance by civil contempt; 1.4 providing procedures and enforcement mechanisms; 1.5 amending Minnesota Statutes 1994, sections 257.67, 1.6 subdivision 3; 588.02; and 588.20; Minnesota Statutes 1.7 1995 Supplement, sections 518.24; and 518.617, 1.8 subdivision 1; proposing coding for new law in 1.9 Minnesota Statutes, chapter 518; repealing Minnesota 1.10 Statutes 1994, section 609.375, subdivisions 3, 4, and 1.11 6. 1.12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 1.13 ARTICLE 1 1.14 CHILD SUPPORT ENFORCEMENT BY CIVIL COMTEMPT 1.15 Section 1. [518.69] [PURPOSE; COERCION OF FUTURE 1.16 COMPLIANCE.] 1.17 Contempt actions are initiated for the purpose of coercing 1.18 future compliance with the district court or administrative 1.19 order that is alleged to have been violated. 1.20 Sec. 2. [518.691] [JURISDICTION IN DISTRICT COURT.] 1.21 Subdivision 1. [JURISDICTION.] Contempt actions must be 1.22 initiated in the district court. 1.23 Subd. 2. [SUBJECT MATTER JURISDICTION.] Contempt actions 1.24 may be initiated for the enforcement of child support, 1.25 maintenance, medical support, day care expenses, or the payment 1.26 of arrears. Contempt actions may be initiated on any Minnesota 1.27 district court order or administrative order, any order 1.28 registered for enforcement under chapter 518C (The Uniform 2.1 Interstate Family Support Act), or any order registered under 2.2 sections 548.26 to 548.33 (The Uniform Enforcement of Foreign 2.3 Judgment Act). 2.4 Subd. 3. [AVAILABLE BEYOND EMANCIPATION.] Contempt actions 2.5 may be initiated after the termination of the current child 2.6 support obligation for the collection of arrears. 2.7 Subd. 4. [INITIATION OF CONTEMPT ACTIONS.] Contempt 2.8 actions may be initiated by: 2.9 (1) an obligee, or by an attorney representing an obligee; 2.10 or 2.11 (2) a county attorney, or other attorney under contract, 2.12 representing the public authority. 2.13 Subd. 5. [NO ELECTION OF REMEDY.] The initiation of a 2.14 contempt action does not preclude the use of any other judicial 2.15 or administrative collection remedy, nor does the use of other 2.16 judicial or administrative enforcement actions preclude the use 2.17 of contempt. The prior entry of a judgment for past due arrears 2.18 does not preclude the initiation of a civil contempt action 2.19 based upon those arrears. 2.20 Sec. 3. [518.692] [VENUE.] 2.21 A contempt action may be initiated in the county that 2.22 issued the prior order, the county in which the alleged 2.23 contemnor resides, the county in which the obligee resides, or 2.24 the county of the public authority that is providing child 2.25 support enforcement services. 2.26 Sec. 4. [518.693] [PLEADINGS.] 2.27 Subdivision 1. [INITIATION.] Contempt actions shall be 2.28 initiated through the service of an order to show cause, notice 2.29 of motion and motion, and supporting affidavits. 2.30 Subd. 2. [ORDER TO SHOW CAUSE.] The order to show cause 2.31 must contain the following: 2.32 (1) a reference to the title and date of signature of each 2.33 order alleged to have been violated; 2.34 (2) a quotation of the specific language in each order 2.35 alleged to have been violated; 2.36 (3) a description of the acts or omissions that establish 3.1 the failure to comply with the orders; 3.2 (4) a list of documents and disclosures that the alleged 3.3 contemnor is required to make or produce at the hearing; 3.4 (5) the specific time and place where the alleged contemnor 3.5 must appear to show cause why the alleged contemnor should not 3.6 be held in contempt of court; and 3.7 (6) a notice that the alleged contemnor has the right to be 3.8 represented by an attorney, and that if the alleged contemnor is 3.9 indigent, the court will appoint an attorney for the alleged 3.10 contemnor. 3.11 Subd. 3. [AFFIDAVIT.] Supporting affidavits must describe 3.12 in detail each of the alleged violations of the orders. Where 3.13 the alleged violation is the failure to pay sums of money, the 3.14 affidavit must state the amounts due, the dates the amounts were 3.15 due, the amounts paid, the dates of the payments, and the unpaid 3.16 amount. 3.17 Subd. 4. [PERSONAL SERVICE.] Contempt actions must be 3.18 initiated through personal service of the order to show cause, 3.19 the notice of motion and motion, and the supporting affidavits 3.20 upon the alleged contemnor. Service upon any person other than 3.21 the alleged contemnor is not sufficient to confer personal 3.22 jurisdiction over the alleged contemnor upon the district court. 3.23 Sec. 5. [518.694] [FAILURE TO APPEAR FOR HEARING.] 3.24 (a) The court shall issue a writ for the arrest of the 3.25 alleged contemnor if the alleged contemnor fails to appear at 3.26 the hearing as required by the order to show cause. The writ 3.27 for arrest shall direct the sheriff to arrest and detain the 3.28 alleged contemnor until: 3.29 (1) a hearing is held to address the allegation of civil 3.30 contempt. The court shall provide to the parties and the 3.31 attorney for the public authority at least 24 hours advance 3.32 notice of the hearing; or 3.33 (2) the alleged contemnor posts cash bail, as an assurance 3.34 that the alleged contemnor will appear for the rescheduled 3.35 hearing, in an amount equal to four times the current monthly 3.36 child support or maintenance obligation. 4.1 (b) If forfeited, the cash bail specified in paragraph (a), 4.2 clause (2), shall be applied to the payment of child support or 4.3 maintenance arrears. If the alleged contemnor appears for the 4.4 hearing, the court may apply the bail to the payment of child 4.5 support or maintenance arrears. 4.6 Sec. 6. [518.695] [APPOINTMENT OF COUNSEL.] 4.7 Subdivision 1. [RIGHT.] The alleged contemnor shall be 4.8 informed of the right to have an attorney present, or if 4.9 indigent, that an attorney will be appointed to represent the 4.10 alleged contemnor. 4.11 Subd. 2. [ELIGIBILITY FOR APPOINTED COUNSEL.] Counsel 4.12 shall be appointed for an alleged contemnor that is financially 4.13 unable to obtain counsel without substantial hardship for the 4.14 alleged contemnor. At the discretion of the court the 4.15 eligibility of the alleged contemnor for appointed counsel may 4.16 be reviewed at each hearing. The alleged contemnor may be held 4.17 responsible for full, or partial, payment of the cost of counsel 4.18 provided by the court. 4.19 Subd. 3. [LIMITED SCOPE OF REPRESENTATION.] An attorney 4.20 appointed for the alleged contemnor shall provide legal services 4.21 on only the determination of contempt, the determination of 4.22 sentence, the determination of conditions for stay of sentence, 4.23 and the revocation of the stay of sentence. Representation must 4.24 not be provided on issues related to modification of support, 4.25 visitation issues, custody issues, or any other issue. 4.26 Subd. 4. [WAIVER OF COUNSEL.] Any waiver of counsel shall 4.27 take place only after the alleged contemnor is informed of the 4.28 right to counsel, and if indigent, the right to counsel 4.29 appointed by the court. The subsequent hiring of a lawyer, or 4.30 the subsequent appointment of counsel by the court, shall not 4.31 result in the review of previous orders issued by the court in 4.32 the contempt proceeding. 4.33 Sec. 7. [518.696] [SCOPE OF HEARING; RIGHT TO TESTIFY; 4.34 PRESUMPTIONS.] 4.35 Subdivision 1. [SCOPE.] The hearing convened pursuant to 4.36 the order to show cause shall be limited to the determination of 5.1 contempt, the determination of sentence, and the determination 5.2 of conditions for stay of sentence, and other requests for 5.3 relief contained in written motions served in conformity with 5.4 the Rules of Civil Procedure. The requirement for properly 5.5 served, written motions may be waived only by specific agreement 5.6 of both parties. 5.7 Subd. 2. [ALLEGED CONTEMNOR'S RIGHT TO TESTIFY.] The 5.8 alleged contemnor must appear in person and be provided with an 5.9 opportunity to resist the contempt motion through sworn 5.10 testimony. 5.11 Subd. 3. [BURDEN OF PROOF ON ALLEGED CONTEMNOR.] The 5.12 alleged contemnor has the burden of demonstrating, by clear and 5.13 convincing evidence, an inability to comply with the order or 5.14 orders to a greater extent than established by the record of 5.15 payment contained in the affidavit in section 518.693, 5.16 subdivision 3. 5.17 Subd. 4. [CLAIMING FIFTH AMENDMENT PROTECTIONS.] An 5.18 alleged contemnor may claim fifth amendment protections and 5.19 decline to offer testimony, or to answer the questions or 5.20 discovery, of the adverse party or the attorney for the public 5.21 authority. The court shall instruct the alleged contemnor that 5.22 the court will draw adverse inferences based upon the absence of 5.23 testimony, which shall result in the adoption of the moving 5.24 parties' pleadings and affidavits as the basis for the court's 5.25 decision. Upon assertion of fifth amendment protections, the 5.26 court shall draw adverse inferences against the alleged 5.27 contemnor. 5.28 Subd. 5. [PRESUMPTIONS.] The court shall apply the 5.29 following presumptions in the resolution of contempt actions. 5.30 In the absence of testimony to rebut the presumptions, the 5.31 presumptions must be adopted as a portion of the factual basis 5.32 for the resulting order. 5.33 (1) The alleged contemnor is presumed to have income 5.34 sufficient to pay the ordered amount of child support or 5.35 maintenance. 5.36 (2) An alleged contemnor who has failed to make payments as 6.1 ordered is presumed to be in contempt of court. 6.2 (3) The alleged contemnor is presumed to have an ownership 6.3 interest in any nonrental residence that the alleged contemnor 6.4 lives in, and in any nonrental vehicle that the alleged 6.5 contemnor operates. 6.6 (4) Violation of a written agreement under sections 6.7 136A.121 (denial of student grant funds), 518.551, subdivision 6.8 12 (occupational license suspension), or 518.551, subdivision 13 6.9 (suspension of driver's licenses), is prima facie evidence of 6.10 contempt. 6.11 Sec. 8. [518.697] [FINDING OF CONTEMPT.] 6.12 An alleged contemnor shall be found to be in contempt if 6.13 the preponderance of the evidence presented, along with the 6.14 applicable presumptions, establishes that: 6.15 (1) the court has subject matter jurisdiction over the 6.16 matter before the court; 6.17 (2) the court has personal jurisdiction over the alleged 6.18 contemnor; 6.19 (3) the alleged contemnor had notice of the order or orders 6.20 that are alleged to have been violated; 6.21 (4) the order or orders clearly define the acts to be 6.22 performed by the alleged contemnor; and 6.23 (5) the alleged contemnor fails to prove, by clear and 6.24 convincing evidence, an inability to comply with the order or 6.25 orders to a greater extent than established by the record of 6.26 payment contained in the affidavit in section 518.693, 6.27 subdivision 3. 6.28 Sec. 9. [518.698] [CONTENTS OF CONTEMPT ORDER.] 6.29 All orders of the court determining the alleged contemnor 6.30 to be in contempt of court must contain the following provisions: 6.31 (1) an order directing the contemnor to appear for all 6.32 subsequent hearings arising from the determination that the 6.33 obligor is in contempt of court; 6.34 (2) the mailing address of the contemnor, and a directive 6.35 that the contemnor inform the court administrator's office, the 6.36 obligee, and the public authority of any change in the 7.1 contemnor's mailing address. The order shall also state that 7.2 service of all subsequent pleadings by first class mail at the 7.3 address shall be adequate service for all purposes; and 7.4 (3) the order must state that the court will issue a writ 7.5 for the arrest of the contemnor in the event the contemnor fails 7.6 to appear for any hearing. 7.7 Sec. 10. [518.699] [DURATION OF FINDING.] 7.8 The determination of contempt is enforceable until the 7.9 termination of the child support or maintenance obligation and 7.10 the satisfaction of all arrears that accumulated under the 7.11 orders that resulted in the contempt determination. 7.12 Sec. 11. [518.70] [INDETERMINATE SENTENCE.] 7.13 The court may sentence the contemnor to a period of 7.14 confinement in the county jail or workhouse reasonably 7.15 calculated to coerce compliance with the orders that were 7.16 violated, may fine the contemnor an amount reasonably calculated 7.17 to coerce compliance with the orders that were violated, or both. 7.18 Sec. 12. [518.701] [STAY OF SENTENCE.] 7.19 Subdivision 1. [STAY.] The court shall stay the execution 7.20 of the sentence and the collection of the fine for as long as 7.21 the contemnor complies with the conditions of the stay of 7.22 sentence. 7.23 Subd. 2. [CONDITIONS OF STAY DEFINED.] The court shall 7.24 clearly define the acts that must be performed by the contemnor 7.25 to avoid the execution of the sentence. The conditions shall be 7.26 reasonably calculated to make the rights of the obligee or 7.27 public authority as against the obligor meaningful. 7.28 Subd. 3. [CONDITIONS OF STAY.] The conditions for stay of 7.29 execution of the sentence may include, but are not limited to, 7.30 requirements that: 7.31 (1) the contemnor pay current child support; 7.32 (2) the contemnor pay an additional amount toward 7.33 accumulated arrears, up to the limits under the Consumer Credit 7.34 Protection Act, United States Code, title 15, section 7.35 1673(b)(2); 7.36 (3) the contemnor pay a percentage of all bonuses and 8.1 commissions received; 8.2 (4) the contemnor pay a lump sum payment toward arrears; 8.3 (5) the contemnor participate in an employment search; 8.4 (6) the contemnor participate in job training; 8.5 (7) the contemnor participate in vocational assessment; 8.6 (8) the contemnor participate in community service; 8.7 (9) the contemnor participate in chemical dependency 8.8 treatment or other treatment related to obtaining employment; 8.9 (10) the contemnor pay fines that are reasonably related to 8.10 costs incurred due to the violation of the orders; or 8.11 (11) any other condition of stay reasonably calculated to 8.12 coerce compliance with the orders. 8.13 Subd. 4. [IN-KIND INCOME MAY BE CONSIDERED IN SETTING 8.14 CONDITIONS.] In-kind income or payments received by the 8.15 contemnor in the course of employment, self-employment, or the 8.16 operation of a business, that reduce the contemnor's living 8.17 expenses may be considered in setting the conditions of stay of 8.18 sentence. 8.19 Subd. 5. [ABILITY TO FULFILL CONDITIONS.] The court must 8.20 make a specific finding that the contemnor has the ability to 8.21 fulfill the conditions of the stay of sentence. The findings 8.22 may be based upon, but are not limited to: 8.23 (1) past earning history; 8.24 (2) imputed income; 8.25 (3) the contemnor's standard of living during the period of 8.26 noncompliance; 8.27 (4) in-kind income or payments received by the contemnor in 8.28 the course of employment, self-employment, or the operation of a 8.29 business, that reduce the contemnor's living expenses; 8.30 (5) the credibility, or lack of credibility, of the 8.31 contemnor; 8.32 (6) adverse inferences drawn from the failure of the 8.33 contemnor to testify or to produce documents required by the 8.34 order to show cause; or 8.35 (7) failure of the contemnor to produce documentation to 8.36 support assertions made in oral testimony. 9.1 Sec. 13. [518.702] [MOTION FOR REVOCATION OF STAY OF 9.2 SENTENCE.] 9.3 Subdivision 1. [MOTION TO REVOKE STAY.] Upon the 9.4 contemnor's failure to comply with the conditions of the stay 9.5 contained in the initial contempt order, a motion for revocation 9.6 of the stay shall be served by first class mail upon the 9.7 contemnor at the address provided by the contemnor at the 9.8 initial hearing. 9.9 Subd. 2. [FACTUAL BASIS FOR REVOCATION.] The motion for 9.10 revocation of the stay shall be supported by an affidavit 9.11 stating the specific conditions of stay alleged to have been 9.12 violated, and the factual basis for the alleged violation, 9.13 including the total amount of support or maintenance due under 9.14 the conditions of stay, the dates and amounts of the payments, 9.15 and the unpaid balance. 9.16 Sec. 14. [518.703] [HEARING ON REVOCATION OF STAY OF 9.17 SENTENCE.] 9.18 Subdivision 1. [TESTIMONY.] The court shall not execute a 9.19 stayed sentence until the contemnor has been provided with an 9.20 opportunity to testify. Testimony shall be limited to 9.21 contesting the factual basis for the revocation of the stay of 9.22 the sentence, and must not extend to a review of the factual 9.23 basis for the initial determination of contempt. 9.24 Subd. 2. [BURDEN OF PROOF.] The contemnor has the burden 9.25 of proving a good-faith effort to fully comply with the 9.26 conditions for the stay of sentence. If, after the contemnor 9.27 has been provided an opportunity to testify, the court 9.28 determines by a preponderance of the evidence that the contemnor 9.29 has failed to fully comply with the conditions for the stay of 9.30 sentence, the court shall vacate the stay of sentence. The 9.31 court shall make findings of fact supporting the decision to 9.32 revoke, or not to revoke, the stay of sentence. 9.33 Subd. 3. [WRIT OF COMMITMENT.] The writ of commitment must 9.34 specify the place of incarceration, and shall state the 9.35 conditions to be met by the contemnor for release, which, in 9.36 every case, shall be the payment of all arrears accumulated 10.1 through the date of release, all fees and costs, and other 10.2 conditions as determined by the court. The contemnor shall not 10.3 be credited with good time. 10.4 Subd. 4. [RELEASE.] The contemnor may be released upon the 10.5 payment of all arrears accumulated through the date of release, 10.6 and all fees and costs, and other conditions as determined by 10.7 the court. 10.8 Sec. 15. [518.704] [FAILURE TO APPEAR FOR HEARING.] 10.9 (a) The court shall issue a writ for the arrest of the 10.10 alleged contemnor if the alleged contemnor fails to appear at 10.11 the hearing on revocation of the stay of sentence. The writ for 10.12 arrest shall direct the sheriff to arrest and detain the alleged 10.13 contemnor until: 10.14 (1) A hearing is held to address the motion to revoke the 10.15 stay of sentence. The court shall provide to the parties and 10.16 the attorney for the public authority at least 24 hours advance 10.17 notice of the hearing; or 10.18 (2) The alleged contemnor posts cash bail, as an assurance 10.19 that the contemnor will appear for the rescheduled hearing, in 10.20 an amount equal to the child support and maintenance due, but 10.21 not paid, under the conditions for stay of sentence. 10.22 (b) If forfeited, the cash bail specified in paragraph (a), 10.23 clause (2), shall be applied to the payment of child support or 10.24 maintenance arrears. If the contemnor appears for the hearing, 10.25 the court may apply the bail to the payment of child support or 10.26 maintenance arrears. 10.27 Sec. 16. [518.705] [DISTRIBUTION OF PAYMENTS UNDER 10.28 CONTEMPT ORDERS.] 10.29 A court order directing that payments to a specific case 10.30 shall take precedence over the distribution methodology for 10.31 payments generally followed by the public authority. 10.32 Sec. 17. [EFFECTIVE DATE.] 10.33 Sections 1 to 16 are effective August 1, 1996. Contempt 10.34 actions may be initiated under sections 1 to 16 based upon any 10.35 failure to comply with a district court or administrative order, 10.36 regardless of whether the order was issued prior to the 11.1 effective date of sections 1 to 16, or whether the alleged act 11.2 of contempt took place prior to the effective date of sections 1 11.3 to 16. Contempt actions initiated prior to August 1, 1996, and 11.4 contempt orders issued prior to August 1, 1996, shall be 11.5 governed by sections 1 to 16. 11.6 ARTICLE 2 11.7 CONFORMING AMENDMENTS 11.8 Section 1. Minnesota Statutes 1994, section 257.67, 11.9 subdivision 3, is amended to read: 11.10 Subd. 3.
Willful failure to obey the judgment or order of11.11 the court is a contempt of the court.All remedies for the 11.12 enforcement of judgments apply including those available under 11.13 chapters 518 and 518C. 11.14 Sec. 2. Minnesota Statutes 1995 Supplement, section 11.15 518.24, is amended to read: 11.16 518.24 [SECURITY; SEQUESTRATION ; CONTEMPT.] 11.17 In all cases when maintenance or support payments are 11.18 ordered, the court may require sufficient security to be given 11.19 for the payment of them according to the terms of the order. 11.20 Upon neglect or refusal to give security, or upon failure to pay 11.21 the maintenance or support, the court may sequester the 11.22 obligor's personal estate and the rents and profits of real 11.23 estate of the obligor, and appoint a receiver of them. The 11.24 court may cause the personal estate and the rents and profits of 11.25 the real estate to be applied according to the terms of the 11.26 order. The obligor is presumed to have an income from a source11.27 sufficient to pay the maintenance or support order. A child11.28 support or maintenance order constitutes prima facie evidence11.29 that the obligor has the ability to pay the award. If the11.30 obligor disobeys the order, it is prima facie evidence of11.31 contempt. The court may cite the obligor for contempt under11.32 this section, section 518.617, or chapter 588.11.33 Sec. 3. Minnesota Statutes 1995 Supplement, section 11.34 518.617, subdivision 1, is amended to read: 11.35 Subdivision 1. [GROUNDS.] If a person against whom an 11.36 order or decree for support has been entered under this chapter, 12.1 chapter 256, or a comparable law from another jurisdiction, is 12.2 in arrears in court-ordered child support or maintenance 12.3 payments in an amount equal to or greater than three times the 12.4 obligor's total monthly support and maintenance payments and is 12.5 not in compliance with a written payment plan approved by the 12.6 court, an administrative law judge, or the public authority, the 12.7 person may be cited and punished by the court for contempt under 12.8 section 518.64,chapter 518 or 588, or this section. Failure to 12.9 comply with a seek employment order entered under section 12.10 518.616 is evidence of willful failure to pay support. 12.11 Sec. 4. Minnesota Statutes 1994, section 588.02, is 12.12 amended to read: 12.13 588.02 [POWER TO PUNISH; LIMITATION.] 12.14 Every court and judicial officer may punish a contempt by 12.15 fine or imprisonment, or both. In addition, when the contempt12.16 involves the willful disobedience of an order of the court12.17 requiring the payment of money for the support or maintenance of12.18 a minor child, the court may require the payment of the costs12.19 and a reasonable attorney's fee, incurred in the prosecution of12.20 the contempt, to be paid by the guilty party.When it is a 12.21 constructive contempt, it must appear that the right or remedy 12.22 of a party to an action or special proceeding was defeated or 12.23 prejudiced by it before the contempt can be punished by 12.24 imprisonment or by a fine exceeding $50. 12.25 Sec. 5. Minnesota Statutes 1994, section 588.20, is 12.26 amended to read: 12.27 588.20 [CRIMINAL CONTEMPTS.] 12.28 Every person who shall commit a contempt of court, of any 12.29 one of the following kinds, shall be guilty of a misdemeanor: 12.30 (1) disorderly, contemptuous, or insolent behavior, 12.31 committed during the sitting of the court, in its immediate view 12.32 and presence, and directly tending to interrupt its proceedings, 12.33 or to impair the respect due to its authority; 12.34 (2) behavior of like character in the presence of a 12.35 referee, while actually engaged in a trial or hearing, pursuant 12.36 to an order of court, or in the presence of a jury while 13.1 actually sitting for the trial of a cause, or upon an inquest or 13.2 other proceeding authorized by law; 13.3 (3) breach of the peace, noise, or other disturbance 13.4 directly tending to interrupt the proceedings of a court, jury, 13.5 or referee; 13.6 (4) willful disobedience to the lawful process or other 13.7 mandate of a court; 13.8 (5) resistance willfully offered to its lawful process or 13.9 other mandate; 13.10 (6) contumacious and unlawful refusal to be sworn as a 13.11 witness, or, after being sworn, to answer any legal and proper 13.12 interrogatory; or 13.13 (7) publication of a false or grossly inaccurate report of 13.14 its proceedings ; or13.15 (8) willful failure to pay court-ordered child support when13.16 the obligor has the ability to pay. 13.17 No person shall be punished as herein provided for 13.18 publishing a true, full, and fair report of a trial, argument, 13.19 decision, or other proceeding had in court. 13.20 Sec. 6. [REPEALER.] 13.21 Minnesota Statutes 1994, section 609.375, subdivisions 3, 13.22 4, and 6, are repealed.