Trial Court Within Rights to Incarcerate Father for Non-Payment

Family Law Case Review
Case: In Re: The Paternity of Jo.J., J.W.J., v. D.C.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court acted within its discretion when it incarcerated Father 30 days for contempt on non-payment of child support – with a provision that Father would be released upon payment of a bond equal to six months of future child support –  and even though Father had brought his arrearage current just prior to the compliance hearing that resulted in Father’s incarceration.

HELD: The trial court’s recalculation of child support was within its discretion because, even though the trial court did not adopt either party’s child support worksheet, the income figures used by the trial court in its sua sponte worksheet were within the range of the evidence that was presented and, further, reflected the trial court’s effort to impute Father to an income level that would be necessary to cover Father’s expenses.

Mother and Father have a lengthy history of litigating and appealing issues of child support. Most recently, Mother had moved the trial court to make an upward modification of child support, and to hold Father in contempt for non-payment of child support. After a hearing, the trial court increased Father’s child support obligation to $252 per week, and ordered Father jailed on contempt for “willful and wanton” failure to pay child support  timely and consistently – but with a provision that Father would be released upon his payment of a bond equal to six months of future support. Father appealed.

The evidence presented to the trial court showed that, as of the evidentiary hearing in question, Father had previously been held in contempt three times for failing to pay child support in a timely and consistent manner, but without any substantial sanction, and that Father had been warned by the trial court of the prospect of incarceration. Father was a commissioned salesperson, with irregular income, but Father had engaged in “creative accounting procedures” for several years to understate his income. The trial court made specific findings that Father, during periods that he was not paying child support timely and consistently, took a $5,000 vacation and had ample resources to pay his own living expenses.

Several weeks after this evidentiary hearing, the trial court held a compliance hearing. In the interim, Father had apparently brought his child support arrearage current. Nevertheless, at the compliance hearing, the trial court announced its order holding Father in contempt for “willful and wanton” failure to pay child support, and ordering Father incarcerated for 30 days – but with a provision that Father would be released upon payment of a bond equal to six months of future child support.

In reviewing the issue, the Court of Appeals noted the case law that generally provides that the purpose of contempt proceedings is to coerce compliance with the court’s orders. However, here the evidence presented was that Father’s non-compliance had been so systematic that the order of incarceration was a legitimate means of ensuring Father’s compliance with his obligation to pay future child support payments. The Court of Appeals also noted that the Indiana Code permits a trial court to require a security, bond, or other guarantee as to future child support payments. Therefore, it was not error for the trial court to require Father to post a $6,070 bond to secure six months of future child support.

In its modification of child support, the trial court adopted gross weekly income of $1,847 for Father. This income amount for Father was greater than the evidence presented by Father ($925/wk), yet less than the income figure used for Father on the worksheet that the State presented on Mother’s behalf ($2,769/wk). Here, the Court of Appeals approved of the trial court imputing Father’s income level by examining Father’s expenses, and then deducing the amount of gross weekly income that would be necessary to cover those expenses. Thus, the trial court acted within its discretion in determining and imputing Father’s income level in the course of recalculating child support.

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: In Re: The Paternity of Jo.J., J.W.J., v. D.C.


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The Matrimonial Law Group of Bingham Greenebaum Doll, LLP is one of the largest full-service matrimonial and family law practices in the State of Indiana. We represent clients in a wide spectrum of family law matters, including premarital agreements, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at

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