A contempt action is often brought to enforce a court order that a party is refusing to comply with. A motion for contempt is often brought to enforce child support, alimony, child custody, and visitation rights, transfers of property, and under O.C.G.A. § 19-6-2 for Attorney's fees and expenses in litigation.
A simple motion for contempt is often based upon the willful refusal to comply with an Order of the Court, and should be brought in the court of original jurisdiction.
A motion for contempt related to child support must be served upon the respondent with a date certain for a hearing which should be within thirty (30) days of the date of service, however this time can be extended up to thirty (30) days if good cause is shown. O.C.G.A § 19-6-28(b).
Generally, in a contempt proceeding, the Court will first determine if the respondent is in noncompliance with the Court's Order. Then the Court will determine if the contempt if willful, or if the contempt is the result of other factors.
Defense to contempt are often based upon an action or lack thereof not being willful. Inability to pay is a defense to contempt. Simply claiming to be unable to pay will often not be enough of a showing for the defense to effective. To successfully prove inability to pay, the burden is on the respondent asserting the defense to show:
- That their income is insufficient to pay;
- They are incapable of finding work that will produce income sufficient to pay;
- If they are self-employed that their business is not making net profits that could be used to pay;
- That they have exhausted all resources to could be used to pay; and
- That they cannot borrow the fund to pay.
Cross v. Ivester, 315 Ga. App. 760 (2012).
Another common problem that we frequently see is when the parties make an agreement between themselves to modify child support upon their own agreement outside of court. While this might be some mitigation in a defense to willful contempt on the biases of reliance, this is not a proper modification and will not excuse the discrepancy in child support payments from the amount originally Ordered by the Court. Likewise a retroactive modification of child support is not proper. O.C.G.A. § 19-6-17(e)(3).