Turner v. Rogers safeguards imprisonment of child-support debtors

On any given day, roughly 50,000 persons are in U.S. prisons or jails for child-support debt.  The legal process by which child-support debtors are imprisoned is the central issue in the U.S. Supreme Court case Turner v. Rogers.  When judges read, understand, and follow the Court’s decision in Turner v. Rogers, fewer persons will be imprisoned for child-support debt.

The Court’s decision does not require judges considering a civil-contempt order to review family courts’ factual determinations.  With a process similar to wage and price determination in the Soviet Union, U.S. family courts have established for each of the roughly twelve million active child-support orders a specific amount that the individual child-support obligor is required to pay.  Until further family court action, the child-support obligor is presumed under child-support law to be able to pay that amount for the next eighteen years, or in some circumstances, longer.[1]  As the dissenting opinion in Turner v. Rogers notes, the Supreme Court does not review that factual decision.[2]  Neither should other courts considering civil-contempt orders for child-support debtors.

Turner v. Rogers sets out a procedural safeguard for unrepresented child-support debtors facing incarceration: a new, explicit, simple finding of whether the child-support debtor is presently able to pay.  Present ability to pay is a new judgment separate from the existing family-court judgment.  Present ability to pay does not require a complex inquiry into past earning capability, due prudence in past employment and financial decisions, future earning capacity, the appropriateness of current investments to increase future earnings, access to capital markets, the extent of legal requirements to plead with family and friends for money to save the debtor from the hardships of debtor imprisonment, and other relevant economic considerations.[3]  The Court’s opinion declares in the concluding sentence of its first, summary paragraph the “critical incarceration-related question” for a judge to decide: “whether the supporting parent is able to comply with the support order.”  The meaning of “is able” is present ability to pay.

The Court’s opinion in Turner v. Rogers consistently declares the relevant judgment to be present ability to pay.  In its discussion of civil contempt, the Court declares the controlling precedent:

A court may not impose punishment “in a civil contempt proceeding when it is clearly established that the alleged contemnor is unable to comply with the terms of the order.” Hicks v. Feiock, 485 U. S. 624, 638, n. 9 (1988). … (he“carr[ies] the keys of [his] prison in [his] own pockets” (internal quotation marks omitted)).[4]

The Court describes the procedural safeguard as “an express finding by the court that the defendant has the ability to pay.”[5]  The present-tense, “is” / “carries” / “has,” matters.  The expert source of the substitute procedural safeguards emphasizes the importance of the present-tense, along with simplicity and objectivity, by repeatedly describing the safeguard element as “accurate determination of present ability to pay.” Moreover, the source provides additional detail on the legal justification for present ability to pay:

The defendant may, however, make the distinct assertion that he has a “present inability to comply with the order in question.” United States v. Rylander, 460 U.S. 752, 757 (1983); see ibid. (“While the court is bound by the enforcement order, it will not be blind to evidence that compliance is now factually impossible. Where compliance is impossible, neither the moving party nor the court has any reason to proceed with the civil contempt action.”); Maggio, 333 U.S. at 74-75.[6]

In considering a civil contempt order to incarcerate a child-support debtor who lacks the benefit of counsel, a court must offer the debtor procedural safeguards equivalent to those that include an express finding of present ability to pay.

A requirement for a simple finding of present ability to pay explains an aspect of the Court’s ruling that experts have found puzzling.  The Court states:

when the right procedures are in place, indigence can be a question that in many — but not all — cases is sufficiently straightforward to warrant determination prior to providing a defendant with counsel, even in a criminal case. Federal law, for example, requires a criminal defendant to provide information showing that he is indigent, and therefore entitled to state-funded counsel, before he can receive that assistance.[7]

The legal showing of indigence that the Court references is not a complex economic analysis of a person’s net present capitalized living value, including charitable resource that could be extracted under a clear and present threat of imprisonment.[8]  Rather, it’s a simple showing such as income over a reasonable period for payment plus liquid assets, relative to a fixed, numerical threshold for indigence.  That sort of determination of indigence is best interpreted not as a description of the determination of ability to pay in child-support enforcement cases, but as the right procedure under the Court’s ruling.  Judges considering a civil-contempt order for an unrepresented child-support debtor must provide at least the equivalent of a similarly simple finding of present ability to pay.[9]

Requiring a simple finding of present ability to pay helps to explain the Court’s judgment that providing a lawyer for an child-support debtor could make a judicial proceeding less fair. Regarding cases in which the custodial petitioner does not have legal counsel, the Court states:

A requirement that the State provide counsel to the noncustodial parent in these cases could create an asymmetry of representation that would “alter significantly the nature of the proceeding.” Gagnon, supra, at 787. Doing so could mean a degree of formality or delay that would unduly slow payment to those immediately in need. And, perhaps more important for present purposes, doing so could make the proceedings less fair overall, increasing the risk of a decision that would erroneously deprive a family of the support it is entitled to receive.[10]

As Fordham law professor Bruce Green has insightfully observed:

For the organized bar, it is an article of faith that a lawyer’s participation makes judicial proceedings more fair, not less fair. … Surely the concern is not that the judge, as a sophisticated fact finder, will be persuaded to rule incorrectly by the lawyer’s soaring rhetoric, or will make erroneous credibility determinations because of the lawyer’s artful cross-examination. And surely the court is not suggesting that the lawyer will manufacture evidence.

How could the benefit of counsel for a respondent facing incarceration increase the risk of a wrong judicial decision?[11]

The concern about a wrong judicial decision may indicate the Court’s appreciation for the actual circumstances of child-support enforcement proceedings.  In the U.S. today, about eight mothers are awarded child support for every father awarded child support.  The petitioners in child-support enforcement proceedings are predominately mothers, and the respondents facing incarceration, predominately men with the legal status of father.  Deeply rooted balancing of motherhood and fatherhood sentiments may require that, if fathers facing incarceration have counsel, mothers seeking money must also have counsel.  An unnecessary section included in the dissenting opinion provides further evidence of such balancing in determining fairness in the Court’s decision.[12]

The Court’s decision can, however, be understood through more orthodox reasoning.  If the custodial parent doesn’t have a lawyer, and the child-support debtor does, the debtor’s side can offer more complex arguments about ability to pay.  Arguments about ability to pay potentially could encompass all the complex financial and legal-accounting reasoning associated with estimating the value of a business.  Asymmetric representation in child-support enforcement proceedings can create procedural unfairness through asymmetric capability to develop complex arguments about ability to pay.  With asymmetric counsel, the resulting unfairness weights against ensuring that all child-support debtors facing incarceration can have a lawyer.

After Turner v. Rogers, courts may incarcerate an unrepresented child-support debtor through a civil proceeding only after making a simple finding of present ability to pay.  The judge in Turner’s case used a form to sentence Turner to a year in jail for child-support debt.  The form included this prewritten statement for the judge to mark:

“Defendant (was) (was not) gainfully employed and/or (had) (did not have) the ability to make these support payments when due.”[13]

The judge didn’t complete this section of the form.  Even if the judge had completed it, that would not have meet the requirements of the Court’s decision in Turner v. Rogers.  Whether the respondent was or was not gainfully employed isn’t relevant beyond the simple fact of the respondent’s current income.  Whether the respondent had or did not have the ability to make these support payments when due isn’t relevant to a simple finding of present ability to pay.  The specific, operational meaning of a simple finding of present ability to pay is a matter for individual jurisdictions and courts to establish.  Nonetheless, a simple finding of present ability to pay is a substantive, reviewable requirement.  That requirement surely is not currently being met in more than one order incarcerating an unrepresented child-support debtor.

The Supreme Court’s decision in Turner v. Rogers will reduce the number of imprisoned child-support debtors.  Doing so serves the Court’s expressed concern about supporting families.  Reducing the number of imprisoned child-support debtors will increase the non-financial and financial support that child-support debtors provide across all persons with whom they have or had a close, long-term personal relationship.

*  *  *  *  *

U.S. Supreme Court, Docket No. 10-10, Turner v. Rogers. Argued March 23, 2011, Decided June 20, 2011.  Court Opinion and Dissenting Opinion.

Case Briefs and Documents

Read more:

• persons in jail or prison for child-support debt
• punishing prisoners with child-support debt
• sex discrimination in child custody and child support
• motherhood and sexism in Turner v. Rogers
• sex payments provide unequal child support

Notes:

[1] Even the public action of incarcerating a person, an action that greatly affects a person’s earning opportunities, does not automatically suspend or change a child-support order.  For the number of orders in effect in 2008, see U.S. Office of Child Support Enforcement, FY 2008 Annual Report to Congress, Table 55.

[2] Turner v. Rogers, dissenting opinion, p. 7, n. 3.

[3] Many persons would be willing to pay a significant amount to save some beloved persons from imprisonment, even if they had no chance of having that amount returned to them. Discussion of the threat of incarceration for child-support debt tends to assume that the threat extracts money from the threatened child-support debtor, rather than from others who care deeply about him.  That assumption defies common sense, demeans child-support debtors’ personal relations, and imagines them as isolated, unloved individuals.

[4] Turner v. Rogers, opinion, p. 8.

[5] Id., p. 14.

[6] Brief for the United States as Amicus Curiae Supporting Reversal, p. 18, n. 6.

[7] Opinion, p. 13.

[8] See note 3.

[9] In Concurring Opinions’ Turner v. Rogers Symposium, Mary Schmid Mergler insightful discusses the complexities of determining ability to pay.  John Pollock provides further discussion of the issue.  The Supreme Court’s decision in Turner v. Rogers sets out, for a civil-contempt order incarcerating an unrepresented child-support debtor, procedural safeguards meeting the requirements of the U.S. Constitution’s Due Process Clause.  States are free to adopt more stringent safeguards for represented and unrepresented child-support debtors.  States are also free to set rules for determining ability to pay that at least satisfying due process requirements under Turner.

[10] Turner v. Rogers, opinion, p. 14.

[11] A more difficult question is the extent to which threatening child-support debtors with incarceration increases support for families.  Most child-support obligations are paid without threatening incarceration.  At the same time, a large amount of child-support debt exists despite roughly 50,000 persons being in jail or prison for child-support debt.  At least five European countries never or nearly never threaten child-support debtors with incarceration (Skinner, Christine, and Jacqueline Davidson (2009).  “Recent Trends in Child Maintenance Schemes in 14 Countries,” International Journal of Law, Policy, and the Family 23, p. 43, Table 8).  Incarceration greatly reduces a child-support debtor’s possibilities to provide financial and non-financial support across all persons with which the debtor has or had a long-term, close personal relationship.

[12] Dissenting opinion, III, pp. 9-13.  Two of the four dissenting justices did not join in this section.

[13] Opinion, p. 4.