Contempt of Court as a Remedy for Unpaid Child Support Arrearages
Arizona law provides numerous ways a court can enforce child support obligations. Some remedies are found in the Uniform Reciprocal Enforcement of Support Act, (URESA). One of these is contempt of court. A court has authority under URESA to enforce support while the child is a minor. What about after the child has reached majority? In Tande v. Bongiovanni, 688 P.2d 1012 (1984) the Arizona Supreme Court addressed this issue.
Facts and Procedure
Mr. Bongiovanni and Mrs. Tande married in Nevada in 1962. They had two children, one in 1962 and one in 1964. In 1965, the couple divorced in California. The court gave Mrs. Tande custody and ordered husband to pay child support of $75 per month per child. He made only a few of the required payments.
In 1980, Mrs. Tande lived in Virginia and Mr. Bongiovanni in Arizona. Wife filed support proceedings under Uniform Reciprocal Enforcement of Support Act against Mr. Bongiovanni. Arizona was the responding state.
The Arizona court held a hearing in December 1980. It found that husband had not made payments for ten years. It ordered him to pay $75 per month to support the one remaining minor child. The court did not rule on the issue of back support until it clarified the amount due.
The husband paid the $75 per month payments until the child reached the age of eighteen. The issue of the arrearages remained unresolved. In September, 1982, the Pima County Attorney’s Office filed for wage assignment on behalf of Mrs. Tande for arrearages.
The trial court dismissed the action, since all post-1981 payments had been made. It found it was without jurisdiction to adjudicate pre-1981 arrearages under URESA once the children achieved majority. Mrs. Tande appealed. The Court of Appeals reversed. It held that the trial court can adjudicate arrearages under URESA even though the children are no longer minors.
The Court further held, however, that contempt was not a proper way to enforce the court decree. The Arizona Supreme Court granted husband’s petition for review. It agreed to address a court’s use of contempt of court to enforce payment of arrears.
Arrearages under URESA
The Arizona Supreme Court agreed with the ruling of the Court of Appeals. It agreed that a court can determine arrearages under URESA even when children are no longer minors. It approved the decision and opinion of the Court of Appeals as to that issue. It then turned to the auxiliary issue.
Can courts use contempt to enforce support orders under URESA after children reach majority?
Cordova Case Enforced Contract
The Court of Appeals ruled that contempt was not a proper way to enforce the court decree. It cited State ex rel. Cordova v. Cordova, 520 P.2d 525 (1974). The Cordova court held that contempt was not available to enforce a judgment for arrearages in child support after a child has reached majority.
The Cordova court (of appeals) stated: The mere fact that this case arises under the Uniform Reciprocal Enforcement of Support Act does not, as appellant would have us hold, enlarge the jurisdiction of Superior Court.
The court in Cordova relied on Ruhsam v. Ruhsam, 518 P.2d 576, that found contempt unavailable. In Ruhsam, the wife was trying to collect support under a post-nuptial contract after the child reached legal majority. The duty of support was based on the contract, not on a court child support order. The instant case is not a contract case.
Here, Mrs. Tande is attempting to collect court-ordered child support for the period the child was a minor. Ruhsam therefore does not apply.
The Supreme Court ruled that the result is different when the case arises under URESA rather than contract.
Enforcing Court-Ordered Support under URESA
The URESA statute states: All duties of support, including the duty to pay arrearages, are enforceable by a proceeding under this article, including a proceeding for civil contempt. The defense that the parties are immune to suit because of their relationship as husband and wife or parent and child is not available to the obligor.
Court decisions are split as to whether contempt may be used to enforce a support order once the child attains majority. The majority view holds that contempt may not be used because the children are no longer dependent. Therefore, the purpose and justification for the extreme remedy of contempt terminates.
The minority view is that courts can use contempt to enforce support obligations even after the child reaches majority. The rationale is that failure to pay court-ordered child support remains willfully disobedient after the child reaches majority. The affront to the court is the same. The Supreme Court agreed.
If a custodial parent loses the contempt remedy once the child becomes emancipated, she can only execute on the obligor’s property. If the obligor parent has no property, the custodial parent may have no effective remedy at all. This imposes upon the custodial spouse or society the financial burden that is lawfully the other parent’s.
The Arizona Supreme Court found the minority view more persuasive. It ruled that an Arizona trial court can use contempt even after the child reaches majority. It found that this would discourage attempts to stall payments until the children come of age.
The Arizona Supreme Court vacated that part of the ruling stating that contempt may not be used to enforce arrearages. It ruled that the use of contempt in URESA proceedings is appropriate even if the children have reached majority. It approved the other parts of the Court of Appeals ruling. The Court overruled the Cordova ruling to the extent it is inconsistent with this opinion. It remanded the matter to the trial court for further proceedings consistent with this opinion.