State on behalf of Maria B. & Renee B. v. Kyle B.
298 Neb. 759
Neb.2018Background
- DHHS brought paternity/support proceedings; Kyle B. was adjudicated father and ordered to pay $230/month beginning Dec. 1, 2015 (based on $8/hr × 40 hrs/week earning capacity). Kyle did not appear at that hearing and did not appeal the support order.
- The State sought contempt after Kyle made no payments and was $2,551.59 in arrears; Kyle was ordered to appear and produce tax returns and wage statements but failed to do so.
- At the contempt hearing Kyle (with appointed counsel) testified he was unemployed after a seasonal layoff in Nov. 2015, claimed physical and literacy disabilities, had done some vague subcontracting work, and had applied for a few recent jobs but presented no documentary proof of earnings, assets, or medical disability.
- The district court found Kyle willfully in civil contempt, concluding he had the ability to pay, and ordered confinement up to 60 days suspended if Kyle paid $230/month current support plus $100/month toward arrears for 18 months (or $1,000 to purge if jailed).
- Kyle appealed, arguing (1) his failure to pay was not willful and (2) the purge plan was impossible to perform and therefore punitive rather than coercive.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kyle) | Held |
|---|---|---|---|
| Whether Kyle willfully disobeyed the child support order | State: Certified payment records show delinquency; statutory presumption of contempt applies and Kyle failed to rebut it | Kyle: Unemployed, disabled, confused about notices, lacked ability to pay | Held: Court did not err—presumption applied; Kyle’s testimony failed to rebut willfulness |
| Whether a child-support order creates a presumption of ability to pay | State: Support order (guidelines-based) evidences ability to pay during period assessed | Kyle: Claimed changed circumstances (unemployment, disability) reducing ability to pay | Held: A guidelines-based order creates a rebuttable presumption of ability to pay; Kyle failed to show changed circumstances |
| Whether the purge plan was punitive (impermissible) because impossible to perform | State: Purge (monthly $330 for 18 months or $1,000 if jailed) was within Kyle’s ability based on record and presumption | Kyle: Indigent; court-appointed counsel earlier shows inability to pay; purge exceeds present ability | Held: No due process violation; record supports implicit finding Kyle failed to prove present inability to pay; purge was coercive, not punitive |
| Who bears burden to show inability to comply with purge order | State: Burden is on contemnor to prove present inability to comply | Kyle: Argued indigency finding suffices to show inability to comply | Held: Burden is on contemnor to both produce and persuade; indigency for counsel is a lower threshold and does not excuse purge burden |
Key Cases Cited
- Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (statutory/contumacious standards and contempt principles)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (burden to prove civil contempt)
- Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (necessity of express findings on ability to comply; distinctions between civil and criminal contempt)
- Turner v. Rogers, 564 U.S. 431 (due process limits when monetary civil contempt can result in incarceration)
- In re Interest of Noelle F. & Sarah F., 3 Neb. App. 901, 534 N.W.2d 581 (support order under guidelines presumes ability to pay)
- Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (impossibility of compliance negates willfulness)
- State v. Reuter, 216 Neb. 325, 343 N.W.2d 907 (child support as fundamental obligation)