What if you cannot pay your child support payments?

What do you do?

Ignore it?

I’d strongly suggest not doing that.

Child Support Payments | Robert And Geraldine

Let’s go way back to 1987 when Robert Shelton and Geraldine Shelton were divorced and Robert has to make child support payments.

This is Shelton v. Shelton, 653 So. 2d 283 (Miss. 1995).

Robert starts paying the $200.00 per month in child support payments.

About five years later Robert files a Petition to Modify the Divorce Judgment.

Robert wants to change custody of one of the kids and modify the child support payments.

Geraldine files an Answer to Robert’s Petition and says, basically, wait a minute, Robert is in contempt.

What’s he in contempt for?

I’ll give you one guess. . .

Failure to make child support payments.

I keep saying this but let me say it again: I see the same thing repeatedly: follow the Judge’s Orders!

If you cannot follow the Judge’s Order for some reason, file a Petition or a Motion immediately!

Yes, this will require you to hire a lawyer, but you have no choice.

Otherwise, the Judge may find you in contempt and you pay attorney fees and costs or worse.

So back to Robert.

Robert does not immediately get a lawyer.

Instead, Robert falls behind to the tune of about $7,970.00.

After he falls behind by this amount, then he files his Petition.

This is dumb.

This is asking for a trial judge to smack you in the face with the gavel.

In the original divorce Order, Geraldine gets custody of both kids.

Both live with her until about September 1988 when Geraldine asks Robert to get one of the kids because she was “interfering with Geraldine’s life.”

Robert picks the kid up the next day and enrolls her in the local junior high school and she lives with him.

At the time, Robert does not have a job and was about $2,000.00 or so behind in child support payments.

Despite being behind in child support payments, Robert buys the kid a new car and he pays the the car note and insurance.

Side note here: how is the kid in junior high driving? Does she fail a bunch of grades or what?

Another side note here: if Robert has no job, how is he paying for a new car?

Robert lives with the kid in a metal shed with no head and only a wood stove for about four months.

Side note: why is Robert buying a new car if he lives in a shed?

Anyway, Robert convinces the kid to move back with Geraldine until he can get some money.

The kid moves back to Geraldine’s house and lives there from January 1989 until June 1989.

The kid then moves in with Robert again for the summer months.

The kid thereafter stayed with Robert, attending eleventh and twelfth grades at Horn Lake. In total, Aunnie had lived with Robert for about 37 months from the time the couple divorced until the time of the hearing.

Sometime prior to November 1990 Robert contacted an attorney in Southaven about changing custody of Aunnie from Geraldine to himself.

Robert paid $400.00 to have legal papers prepared, but the attorney neglects his case.

Robert then asks for his money back, at which time the attorney returns $100.00 and provides a motion to modify as well as a consent order.

Although Geraldine asks Robert to have Aunnie’s custody legally changed, when he presents her with these papers she refuses to sign them.

Robert has receipts for all of the $6,000.00 or $6,400.00 child support he pays Geraldine from the time of divorce forward.

He is unable to pay either $400.00 or $200.00 monthly child support while he had the kid with him.

While Robert claims he has adequately provided for Aunnie, he also contends that he could not afford to pay child support for her or his other child who still resided with Geraldine.

A painter, Robert does not have a job at the time of trial; “whatever I make, I make” he tells the trial judge.

Nonetheless, Robert provided the court with a financial statement which reflects his income and expenses from January 1992 to September 1992.

This statement shows his gross and net monthly income as $900.00 and monthly expenses totalling $1,550.00.

Robert testifies that it would be fair if he provides for Aunnie, since she was in his custody, and Geraldine provides for Mandy, the parties’ other child, who was in Geraldine’s custody.

Mandy was 11 years old at the time of the hearing.

Geraldine testified that for the first year following her divorce from Robert, he paid the entire amount of child support only one month. In 1991 Geraldine contacted the Legal Department of the Human Services Office regarding Robert’s failure to pay child support.

Geraldine told Ms. Atkinson, an employee of the Office, that all she wanted was $200.00 a month for the child who resided with her. According to Geraldine, Robert agreed to pay the $200.00 a month beginning May 8 and she agreed not to sue for the arrearage.

Shortly thereafter, Robert brought her the papers she had requested, to change custody of Aunnie from Geraldine to Robert, but the papers also provided that all child support for both children would be dropped.

Geraldine refused to sign the papers.

An affidavit of accounting was prepared by Ms. Atkinson and Geraldine to show how much Robert had paid and how much his arrearage was.

This accounting reflects that Geraldine gave him credit for payment of $200.00 a month from July 1990 through April 1992, although he had not paid this amount. This was done because Geraldine did not want child support for Aunnie while she was living with Robert.

Robert’s total credit through April 1992 was $10,030.00 and his arrearage was $11,970.00. He had not paid any amount of child support since that time.

Geraldine testified that she only wanted $200.00 a month child support for Mandy and the arrearage owed, which was $13,770.00 at the time of the hearing.

Geraldine agreed that if $200.00 a month were subtracted for each month that Aunnie had lived with Robert from July 1990 to the present, the arrearage figure would be reduced.

The chancellor found that Robert had unclean hands, as he was in arrears in the amount of $1,500.00 to $2,000.00 in child support as of June 1989.

As a result, the chancellor declined to grant Robert’s modification.

Robert was found in contempt of court and liable for $13,770.00 in child support arrearage, less $200.00 per month for the period from June 1990 to the date of the hearing since Aunnie had been in his continuous custody for those months.

Geraldine was awarded judgment in the amount of $7,970.00 with 8% interest.

Based on Robert’s financial statement, which the chancellor found revealed some excessive expenses, the chancellor found Robert had the ability to pay.

The chancellor further provided that Robert could purge his contempt by paying toward the arrearage $100.00 per month beginning January 1, 1993.

Finally, although the chancellor claimed not to be modifying the decree, he reduced Robert’s child support payments from $400.00 a month to $200.00 a month beginning January 1, 1993, to cover only the child in Geraldine’s care and custody.

The parties were ordered to pay their own attorney fees, with Robert responsible for court costs.

I can tell you that Robert gets lucky there with this ruling.

Child Support Payments | The Law

So what does the Mississippi Supreme Court say?

Whether a party is in contempt of court is left to the chancellor’s substantial discretion. However, clear and convincing proof is required. When a party is unable to pay court ordered support, the proper action for him to take is to promptly file for a modification of support. When this course of action is followed, a finding of contempt is not proper.

When a party fails to take this course of action, he must “make out a clear case of inability.” Where substantial evidence supports the chancellor’s finding that payments could have been made, this Court will not reverse.

This legal mumbo jumbo means what I say a lot: if you fall behind because you cannot pay it, get a lawyer immediately and file something with the Court.

Do NOT wait!

And this is where Robert went wrong.

He waits.

The Mississippi Supreme Court points this out and says: Robert did seek a modification of his child support obligations prior to Geraldine’s counterclaim for contempt. However, Robert did not follow this course of action promptly. His petition for modification was filed in May 1992. In the first year following the September 1987 divorce decree Robert paid the full amount of child support only one month. Since September 1988, when Aunnie first moved in with him, Robert “adjusted” his support payments without the consent of any court. It follows that the burden was on Robert to make out a clear case of inability to prevent a finding of contempt.

In other words, Robert must prove he was unable to pay and he must file something immediately with the Court.

Child Support Payments | The Bottom Line

The bottom line is: when you are unable to pay for whatever reason, get a lawyer immediately. Get this lawyer to immediately file something with the Court to let the Judge know why you cannot pay.

A judge is much more likely to accept your excuse the sooner you file something to let the judge know what has happened.

Were you injured so you cannot work?

Did you get fired?

Whatever it is, file it with the Court immediately.

If you have more questions, go read my frequently asked questions where I answer nearly everything you could possibly think of about these kind of cases.