Attorney's fees for failing to pay child support..

While not always one of my clients’ favorite topics of discussion, paying child support is a legal and moral obligation (if the father is financially able to pay child support) in the State of Missouri. When a Court orders a parent to pay child support to their co-parent, Courts expect those orders to be abided by. The consequences of willingly failing to pay court-ordered child support can be substantial, and many Judges will aggressively pursue blatant violators.  Few Judges have much sympathy for a man with a substantial income who fails to pay child support when he is financially able to.

A court has a repertoire of tools at its disposal to enforce child support orders and punish those who willfully neglect to pay child support.  When the payee parent (the parent receiving child support) believes they have not received the court-ordered child support from the payor parent (the parent paying child support), the payee parent can file a motion to enforce the terms of the agreement or judgment, or file a motion for contempt of court.

The potential penalties for failing to pay child support can include the State of Missouri garnishing a parent’s wages, seizing tax refunds or lottery winnings, license suspensions and in rare circumstances even jail time.  If you really want to be incarcerated for failing to pay child support, then fail to show up for court when a motion to enforce child support is filed against you. A Judge can and will issue a warrant for your arrest if you repeatedly no-show court.  Failing to pay child support is a criminal offense in Missouri, and a prolonged substantial arrearage (the amount of child support owed) over $5000 can result in the filing of felony charges against you…this is not a place you want to be.

Yet the vast majority of child support disputes are devoid of criminal consequences and solely involve civil consequences. In a recent case decided by the Missouri Court of Appeals (Whitton vs. Whitton), a mother filed a motion for civil contempt of court against her child’s father for violating a court order for failing to pay child support.  Contempt of Court comes in two varieties: Civil contempt enforces compliance with a court order, and the punishment is designed to coerce that party into following the court’s order.  Criminal contempt is used to reprimand disrespectful or disruptive behavior towards the court or to enforce the court’s ruling, so as to vindicate the court’s authority.

In the Whitton case, the father stopped paying child support and rationalized it in several ways. The father’s income had decreased substantially, and he believed a court would retroactively change the support order to reflect his lower income. At the same time the mother’s income had increased to over two hundred thousand dollars a year.  The father also stopped paying child support because the mother refused to allow the children visitation with the father.  In the original judgment from 2014 (the paid had 2 kids at the time, 4 and 6 years of age) the father was ordered to pay $1400/month child support, then his child support was increased to $2150 in 2016.

In 2022 father filed a motion to modify his child support given his income had decreased and mother’s income had increased. Mother filed a counter motion for contempt of court regarding father’s failure to pay child support and asked the Court for attorney’s fees. Dad then amended his motion to modify child support requesting a child support modification and an abatement of child support since 2018 due to Mother’s alleged failure without good cause to allow him to have his parenting time.

The Court found mother didn’t give notice of moving because she said they are afraid of the father and that Mom’s income tripled since father’s child support order from 80K to 232K. The Judge denied Mother’s motion for contempt because although father had the ability to pay child support and his failure to do so was willful and in disregard of the Court’s order, he had good cause because he expected his motion to modify would reduce his monthly obligation (with retroactive application). The Court also denied Mother’s request for attorney’s fees.

The Mother appealed to the Western District of Missouri Court of Appeals from the judgment of the Circuit Court of Platte County modifying the child support obligation of Father and denying her motion for contempt. Mother’s motion raises several points on appeal, including challenging the Court’s ruling that Father had good cause for his non-payment of child support. Mother also claims the court erred in ordering Father’s modified child support obligation retractive to June 1, 2021, and erred when Mother request for attorney’s fees was denied.

First the Appeals Court discussed Mother’s motion for contempt, “a party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor’s obligation to perform an action as req by the decree; (2) the contemnor’s failure to meet the obligation. The alleged contemnor then has the burden of proving that person’s failure to act was not due to his own intentional and contumacious conduct.”

Missouri State Statute Section 452.355.2 authorizes the award of attorney’s fees in proceedings in which the failure to pay child support is an issue in the case. It says: “In any proceeding in which the failure to pay child support pursuant to a temporary order or final judgment is an issue, if the court finds that the payor has failed, without good cause, to comply with such order or decree to pay the child support, the court shall order the obligor, if requested and for good cause shown, to pay a reasonable amount for the cost of the suit to the obligee, including reasonable sums for legal services.  The court may order that the amount to be paid directly to the attorney, who may enforce the order in his name. For the purposes of this statute, “‘good cause’ includes any substantial reason why the obligor is unable to pay the child support as ordered.”

The appeals court then ruled that Mother had established a case for civil contempt against Father.   The original court’s January 2017 ruling increased Father’s support obligation to $2,155 per month, effective December 16, 2016.  Mother presented evidence at trial that as of December 2023 Father had a child support arrearage of $28,530.25.  Once this case for civil liability was established, the burden shifted to the Father to show that his failure to pay was not due to his own intentional and contumacious conduct.

The trial court determined that Father had failed to pay $28,530.25 of his child support obligation since the January 2017 court order.  It also found that he had the ability to pay all his child support during the time period, and that “his failure to do so was in willful and contumacious disregard of the trial court’s order.”  The trial court specifically found that Father did not meet his burden to prove that his failure to pay was not due to his own intentional and contumacious conduct.  Based on these findings, the appellate court found

The trial court seems to have confused the criteria for civil contempt and attorney’s fees (and/or possibly criminal nonsupport) in finding that Father was not in contempt because he had good cause for his failure to pay.  The trial court, therefore, misapplied the law in finding that Father was not in contempt for failure to pay child support. The appellate court reversed the trial court’s judgment finding that the Father was not in contempt and reversed the trial court’s judgment denying the Mother attorney’s fees.

The appeals court then decided to “remand” or send the case back to the original trial court for that Judge to reconsideration the Mother’s the motion for contempt and a reasonable award of attorney’s fees to the Mother under section Missouri Statute 452.355.2, if appropriate, based on the record and evidence already submitted.  Because “good cause” according to the law only involves an payor who is “unable to pay,” the Father’s decision not to pay child support based on his erroneous application of the law (that any back child support would be eliminated by a retroactively-applied modification) would not constitute “good cause” under the statute.

This case is an example of the potential consequences of messing around with not paying child support. Although there are good reasons for failing to pay child support, those excuses are limited. Losing a legal case on appeal you thought you had won is bad, but when you lose on appeal and have to pay the other party’s attorney’s fees it adds insult to injury. If you are having trouble with child support talk to the other parent and be honest. If that doesn’t help call our The Men’s Center for Domestic Resolution at (816) 287-1530.