State on behalf of Maria B. & Renee B. v. Kyle B.
298 Neb. 759
Neb.2018Background
- Kyle B. was adjudicated father of two children and a December 2015 court order (based on Nebraska Child Support Guidelines) required him to pay $230/month in child support.
- Kyle did not appear at the paternity/support hearing, was deemed to have admitted earning capacity ($8/hour, 40 hrs/wk), and did not appeal the support order.
- The State (Title IV‑D/DHHS) sought contempt for nonpayment; a certified payment history showed $2,551.59 in arrears and Kyle had made no payments on the December 2015 order.
- At the contempt hearing Kyle testified he was unemployed, had seasonal layoff from roofing in Nov 2015, claimed physical and literacy disabilities, had done some subcontracting, and had applied for jobs recently; he produced no tax/wage records despite a court order.
- The district court found Kyle willfully in civil contempt, committed him to 60 days’ jail suspendable if he paid $230/month current support plus $100/month toward arrears for 18 months (or $1,000 to purge if jailed). The court did not expressly state Kyle’s present ability to pay the purge amount.
- Kyle appealed, arguing (1) his nonpayment was not willful and (2) the purge plan was impossible to perform and therefore punitive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kyle willfully violated the child support order (civil contempt) | State: certified payment history and §42‑358(3) prima facie showing establishes delinquency and a rebuttable presumption of contempt/ability to pay | Kyle: claimed unemployment, disabilities, and inability to pay; disputed willfulness | Court: Affirmed contempt. §42‑358(3) created a rebuttable presumption; Kyle’s testimony and failure to produce records did not rebut it, so willfulness finding not clearly erroneous |
| Whether the purge amount/plan was coercive vs. punitive (due process) | Kyle: purge schedule (monthly $330 for 18 months or $1,000 if jailed) was beyond his present ability and therefore punitive | State: past ability and presumption from guideline order plus Kyle’s failure to prove present inability supports civil purge plan | Court: No due process violation. Although court did not expressly state present ability to pay, record supported implicit finding Kyle failed to prove present inability; purge amount not punitive |
| Burden to prove inability to comply with purge and effect of prior indigency finding | Kyle: July indigency finding undermines ability-to-pay purge | State: indigency for counsel is a lower threshold than inability to purge; contemnor must prove present inability | Court: Burden is on contemnor to prove present inability to comply; indigency for counsel does not preclude finding ability to pay purge |
| Proper standard / evidence for ability-to-pay and relevance of child support guidelines | State: child support order under guidelines furnishes evidence/presumption of ability to pay | Kyle: claimed changed circumstances (disability, unemployment) | Court: A guideline-based support order creates a presumption of ability to pay; to rebut, parent must show changed circumstances with evidence (which Kyle failed to do) |
Key Cases Cited
- Hossaini v. Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012) (standards on contempt and related procedural law)
- Sickler v. Sickler, 293 Neb. 521, 878 N.W.2d 549 (2016) (civil contempt incarceration requires express findings on ability to comply)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661, 782 N.W.2d 848 (2010) (burden and standards in contempt contexts)
- Turner v. Rogers, 564 U.S. 431 (2011) (due process limits when civil contempt leads to incarceration in family support cases)
- United States v. Armstrong, 781 F.2d 700 (9th Cir. 1986) (distinguishing civil and criminal contempt remedies and standards)