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  1. #1

    Default Contempt Petition Answer and Counter Petition

    My question involves a child custody case from the State of: TN

    Previous post: https://www.expertlaw.com/forums/sho...d.php?t=245249

    I was never able to file a petition, I was advised that being behind on child support would likely cause big issues...

    Now my ex has filed a petition for contempt of child support order. I am right now something like $6000 behind. At the time of order I was in arrears already for the back support since the process was so long and I wasn't paying anything. I started paying (sometimes extra for arrears) until I lost my job, which I quit to take a new, better job that I was offered but it fell through, leaving me in cold, so to speak. I don't work during my parenting time (every other weekend) and in the restaurant industry, that is a HUGE issue. I could probably have a 6 figure job right now if I had weekend availability. But since I only get that little bit of time with my son, I am not willing to sacrifice it. Getting a job is easy. Getting a job that will work with that schedule AND that I'll make enough money only working half the weekends is not. My job is very inconsistent as far as income... since quitting that job, I have changed jobs an additional 6 times (to either move up or because something wasn't working, fired from two) started classes for something flexible that I can do from home with an hourly rate as well as began doing courier jobs (postmates, grubhub, doordash, shipt, ect) which is very poor pay, but it's flexible. It is of course harder to pay the essential bills while I'm in this class, but I'm still interviewing and applying for jobs where I'll make more.. I'm in training for a new job right now.

    I know I have to file an answer to his petition, and since I'm going to have to go to court anyways, I'm going to counter file for a modification of custody and parenting time, because of course the situation has changed significantly - my son isn't even living with his father now, lives with grandparents, and the person that the judge believed created a safety risk is long gone. There was no danger of him coming back into my life, but there was no reason for the judge to believe that at the time we went to court because he got out of jail that same day, and I wasn't even allowed to testify to anything on the topic. I would have done the same thing if it were me.

    As a side note... they are also saying I willfully violated the court order for support because I took my son to Atlanta to visit the Space and Rocket Center.. lol.. all I had to pay for was one tank of gas.

    Questions... Who has the burden of proof that I willfully did not pay support? Usually the courts will reserve the support petitions to go along with modification petitions, is that the same thing that happens with contempt? I am freaking out a little... I am in class until April, and I'm making very little being in training for the regular job as well.

  2. #2
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    Default Re: Contempt Petition Answer and Counter Petition

    Who has the burden of proof that I willfully did not pay support?
    In legal terms it's called a "presumption." You didn't pay. The presumption is that you chose not to pay (willfully did not pay).

    That means the burden is on you to convince the judge that circumstances beyond your control prevented you from paying.

    Unfortunately, by your own admission, you could have made a lot more money by working weekends but you chose not to. By choosing not to (for whatever reason) you've created a big mess for yourself.

    Had you worked weekends, sure, you would have given up time with your son but that would have been temporary, would have allowed you to pay down the arrears substantially, and given you an opportunity to petition the court for a change in visitation based on your work schedule.

    What you need to do now is respond, in writing, in the proper format, to your ex's petition and explain why you shouldn't be held in contempt. In that response you are free to ask the court for a change in your visitation schedule that will allow you to work weekends to enable to make more money and pay down the arrears quickly.

    I suggest you do some internet searches for formats that you can use for answering the petition and moving for a change in visitation.

  3. #3
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    Default Re: Contempt Petition Answer and Counter Petition

    Quote Quoting Eph612Mom
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    My question involves a child custody case from the State of: TN
    Questions... Who has the burden of proof that I willfully did not pay support?
    If it is a civil contempt proceeding then the way it works is that the party seeking the contempt finding has to prove that you failed to comply with the order, i.e. that you failed to make the payments that the court ordered you to pay. Once that has been established, then the burden falls on you to prove inability to pay. As the Tennessee courts explain:

    It is well settled that “a failure to comply with such a decree places the defendant prima facie in contempt of court and puts upon him the burden of proving his inability to make the payments as directed.” Chappell, 261 S.W.2d at 831. To avoid being held in contempt, the party claiming an inability to pay alimony must prove that after a good faith effort to pay alimony, he is unable to do so. See Bradshaw, 23 Tenn.App. at 363-64, 133 S.W.2d at 620; Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740, 743 (1960).

    Ball v. Ball, No. 02A01-9709-GS-00239, 1999 WL 95977, at *3 (Tenn. Ct. App. Feb. 25, 1999).

    However, if it was a criminal contempt proceeding then the burden is entirely on the state or other party seeking the criminal contempt to prove the contempt beyond a reasonable doubt:

    A defendant accused of criminal contempt is presumed to be innocent. Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542, 544 (Tenn.1966). The party seeking a finding of contempt, therefore, bears the burden of proving guilt beyond a reasonable doubt. Id. Necessarily, the State's burden in the instant case was to establish, beyond a reasonable doubt, that Mr. Creighton willfully disobeyed the court's order on child support.

    State, ex rel. Creighton v. Creighton, No. M2010-01171-COA-R3CV, 2011 WL 1344638, at *11 (Tenn. Ct. App. Apr. 7, 2011).

  4. #4

    Default Re: Contempt Petition Answer and Counter Petition

    Thanks for responding without trying to cut my head off!

    Quote Quoting adjusterjack
    View Post
    Had you worked weekends, sure, you would have given up time with your son but that would have been temporary, would have allowed you to pay down the arrears substantially, and given you an opportunity to petition the court for a change in visitation based on your work schedule.
    That isn't exactly true... I would have been able to pay it down faster, but I would have given up most if not all time with my son... for a long period of time... and may not have been able to keep the job anyways. I would have been depending on a babysitter, or not exercising my time at all, and could have ended up burning a very narrow bridge. It has been hard enough on him to go from mom's house and homeschooling all the time to grandma's house and public school... ripped away from everyone in his life right after a traumatic experience... and didn't receive counseling like he should have. I couldn't do that to him. I'm the only person in his life that actually has his best interest and future in mind, and the only person he talks to about the important stuff. I try to get to his school to have lunch with him when my schedule allows, too, but it's not often. Also, even having paid it down, I wouldn't be able to go back to court right away. The judge was very clear that the previous boyfriend needed to be long gone before she would consider a change. He moved away about a year ago. That's the time frame I was advised to wait, about a year. I don't think any reasonable person would expect a mother to sacrifice all relationship with her child for money... would they?

    I've filed my own petitions and answers before, I'm not worried about that. And I have a plan to get back on track and be able to pay it down. Of course my hope is that this drags out long enough for me to make a dent in it with the two regular jobs and all the flexible things I can use to fill in the holes.

    Besides looking at my income, what else should I be prepared to provide? Expenses information? Rent, car payment, ect? Does the court operate under any guidelines as to what constitutes "ability to pay?" All of the months that I did not pay, I made less than the income amounts that child support was set from, some by half. I've also made changes to my life to cut out nearly a grand in expenses, like dropping services, lowering or dropping insurance, I stopped contributing and closed all my investments and 401-K...

    Quote Quoting Taxing Matters
    View Post
    If it is a civil contempt proceeding then the way it works is that the party seeking the contempt finding has to prove that you failed to comply with the order, i.e. that you failed to make the payments that the court ordered you to pay. Once that has been established, then the burden falls on you to prove inability to pay. As the Tennessee courts explain:

    It is well settled that “a failure to comply with such a decree places the defendant prima facie in contempt of court and puts upon him the burden of proving his inability to make the payments as directed.” Chappell, 261 S.W.2d at 831. To avoid being held in contempt, the party claiming an inability to pay alimony must prove that after a good faith effort to pay alimony, he is unable to do so. See Bradshaw, 23 Tenn.App. at 363-64, 133 S.W.2d at 620; Leonard v. Leonard, 207 Tenn. 609, 341 S.W.2d 740, 743 (1960).

    Ball v. Ball, No. 02A01-9709-GS-00239, 1999 WL 95977, at *3 (Tenn. Ct. App. Feb. 25, 1999).

    However, if it was a criminal contempt proceeding then the burden is entirely on the state or other party seeking the criminal contempt to prove the contempt beyond a reasonable doubt:

    A defendant accused of criminal contempt is presumed to be innocent. Shiflet v. State, 217 Tenn. 690, 400 S.W.2d 542, 544 (Tenn.1966). The party seeking a finding of contempt, therefore, bears the burden of proving guilt beyond a reasonable doubt. Id. Necessarily, the State's burden in the instant case was to establish, beyond a reasonable doubt, that Mr. Creighton willfully disobeyed the court's order on child support.

    State, ex rel. Creighton v. Creighton, No. M2010-01171-COA-R3CV, 2011 WL 1344638, at *11 (Tenn. Ct. App. Apr. 7, 2011).
    Thank you

  5. #5
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    Default Re: Contempt Petition Answer and Counter Petition

    Besides looking at my income, what else should I be prepared to provide? Expenses information? Rent, car payment, ect?
    All of that and whatever else you can think of. The judge isn't going to pay attention to what you say. He'll want to see what you can prove. Do your 2019 taxes before the hearing so you have your tax return. Make a spreadsheet of your income and expenses with supporting documents. Make a cover page with a table of contents. Label each section. Make three copies. One for you, one for the judge, and one for your ex.

    Does the court operate under any guidelines as to what constitutes "ability to pay?"
    I'm sure it does.

    All of the months that I did not pay, I made less than the income amounts that child support was set from, some by half. I've also made changes to my life to cut out nearly a grand in expenses, like dropping services, lowering or dropping insurance, I stopped contributing and closed all my investments and 401-K...
    Again, documentation is important.

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    Default Re: Contempt Petition Answer and Counter Petition

    Very useful topic for me. Thanks.

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    Default Re: Contempt Petition Answer and Counter Petition

    Quote Quoting Eph612Mom
    View Post
    My question involves a child custody case from the State of: TN

    Previous post: https://www.expertlaw.com/forums/sho...d.php?t=245249.

    As a side note... they are also saying I willfully violated the court order for support because I took my son to Atlanta to visit the Space and Rocket Center.. lol.. all I had to pay for was one tank of gas.

    .
    Considering that the Space & Rocket Center is not in Atlanta, but Huntsville, AL... That raises questions about someone's credibility right there.
    Don't make me quote Monty Python at you.

  8. #8

    Default Re: Contempt Petition Answer and Counter Petition

    Quote Quoting BooRennie
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    Considering that the Space & Rocket Center is not in Atlanta, but Huntsville, AL... That raises questions about someone's credibility right there.
    Lol...
    Just a typo. Atlanta and Huntsville are our 2 favorite places to go and I've been talking a lot about traveling lately. Huntsville...
    On a side note, I don't have to notify him of out of state travel unless it's 48 hours, and this is just a day trip for us, about 2 hours away.

  9. #9
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    Default Re: Contempt Petition Answer and Counter Petition

    Quote Quoting Eph612Mom
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    Lol...
    Just a typo. Atlanta and Huntsville are our 2 favorite places to go and I've been talking a lot about traveling lately. Huntsville...
    On a side note, I don't have to notify him of out of state travel unless it's 48 hours, and this is just a day trip for us, about 2 hours away.
    Yeah, sounds like Dad's side is slinging to see what sticks at this time.
    Don't make me quote Monty Python at you.

  10. #10

    Default Re: Contempt Petition Answer and Counter Petition

    Yes, that is exactly the reputation that their lawyer has... throw everything at the wall and see what sticks.
    My situation has become much more serious, I am preparing a new thread because it has nothing to do with the child support issue. I hope you'll take a look.
    https://www.expertlaw.com/forums/sho...72#post1132272

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