40-5-601. Failure to pay support -- civil contempt. (1) For purposes of this section, "support" means child support; spousal support; health insurance, medical, dental, and optical payments; day-care expenses; any other payments due as support under a court or administrative order; and contributions ordered pursuant to 41-5-1525. Submission of health insurance claims is a support obligation if health insurance coverage is ordered.
(2) If a person obligated to provide support fails to pay as ordered, the payee or assignee of the payee of the support order may petition a district court to find the obligated person in contempt.
(3) The petition may be filed in the district court:
(a) that issued the support order;
(b) of the judicial district in which the obligated person resides; or
(c) of the judicial district in which the payee or assignee of the payee resides or has an office.
(4) Upon filing of a verified petition alleging facts constituting contempt of the support order, the district court shall issue an order requiring the obligated person to appear and show cause why the obligated person should not be held in contempt and punished under this section.
(5) The obligated person is presumed to be in contempt upon a showing that:
(a) there is a support order issued by a court or administrative agency of this or another state, an Indian tribe, or a country with jurisdiction to enter the order;
(b) the obligated person had actual or constructive knowledge of the order; and
(c) the obligated person failed to pay support as ordered.
(6) Certified payment records maintained by a clerk of court or administrative agency authorized by law or by the support order to collect support are admissible in a proceeding under this section and are prima facie evidence of the amount of support paid and any arrearages under the support order.
(7) Following a showing under subsection (5), the obligated person may move to be excused from the contempt by showing clear and convincing evidence that the obligated person:
(a) has insufficient income to pay the arrearages;
(b) lacks personal or real property that can be sold, mortgaged, or pledged to raise the needed sum;
(c) has unsuccessfully attempted to borrow the sum from a financial institution;
(d) has no other source, including relatives, from which the sum can be borrowed or secured;
(e) has a valid out-of-court agreement with the payee waiving, deferring, or otherwise compromising the support obligation; or
(f) cannot, for some other reason, reasonably comply with the order.
(8) In addition to the requirement of subsection (7), the obligated person shall also show by clear and convincing evidence that factors constituting the excuse were not caused by the obligated person voluntarily:
(a) remaining unemployed or underemployed when there is employment suitable to the obligated person's skills and abilities available within a reasonable distance from the obligated person's residence;
(b) selling, transferring, or encumbering real or personal property for fictitious or inadequate consideration within 6 months prior to a failure to pay support when due;
(c) selling or transferring real property without delivery of possession within 6 months prior to a failure to pay support when due or, if the sale or transfer includes a reservation of a trust for the use of the obligated person, purchasing real or personal property in the name of another person or entity;
(d) continuing to engage in an unprofitable business or contract unless the obligated person cannot reasonably be removed from the unprofitable situation; or
(e) incurring debts subsequent to entry of the support order that impair the obligated person's ability to pay support.
(9) If the obligated person is not excused under subsections (7) and (8), the district court shall find the obligated person in contempt of the support order. For each failure to pay support under the order, the district court shall order punishment as follows:
(a) not more than 5 days incarceration in the county jail;
(b) not more than 120 hours of community service work;
(c) not more than a $500 fine; or
(d) any combination of the penalties in subsections (9)(a) through (9)(c).
(10) An order under subsection (9) must include a provision allowing the obligated person to purge the contempt. The obligated person may purge the contempt by complying with an order requiring the obligated person to:
(a) seek employment and periodically report to the district court all efforts to find employment;
(b) meet a repayment schedule;
(c) compensate the payee for the payee's attorney fees, costs, and expenses for a proceeding under this section;
(d) sell or transfer real or personal property or transfer real or personal property to the payee, even if the property is exempt from execution;
(e) borrow the arrearage amount or report to the district court all efforts to borrow the sum;
(f) meet any combination of the conditions in subsections (10)(a) through (10)(e); or
(g) meet any other conditions that the district court in its discretion finds reasonable.
(11) If the obligated person fails to comply with conditions for purging contempt, the district court shall immediately find the obligated person in contempt under this section and impose punishment.
(12) A proceeding under this section must be brought within 3 years of the date of the last failure to comply with the support order.
History: En. Sec. 1, Ch. 523, L. 1993; amd. Sec. 13, Ch. 21, L. 2005; amd. Sec. 5, Ch. 184, L. 2009; amd. Sec. 2, Ch. 223, L. 2009.