Oral Argument Preview: Child Support Contempt “Purge” Hearing to Impose a Suspended Sentence: Civil or Criminal? Michael Liming v. Denday Damos

On October 24, 2012 the Supreme Court issued a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On May 23, 2012, the Supreme Court of Ohio will hear oral argument in the case of Michael Liming v. Denday Damos, (f.k.a. Liming), 2011-1170/2011-1985.  At issue in this case is whether an indigent party is entitled to counsel at a “purge” hearing for non-payment of child support which imposes unconditional jail time.

Michael Liming and Denday Damos were married in 1993 and had two children. Liming filed for divorce in 2001.  In 2002, he filed a bankruptcy petition.  Upon the final decree of divorce, Damos was awarded legal custodian of the children and Liming’s child support obligations were stayed pending conclusion of his bankruptcy proceeding.  After finding that Damos could seek support, in 2007, the court ordered Liming to pay child support.  In 2008, Liming’s debts were discharged under a Chapter 7 bankruptcy.

The Athens County Child Support Enforcement Agency (“ACCSEA”) filed two motions in 2008 requesting that Liming be held in contempt for failure to pay support and for failure to participate with the Seek Employment Program.  The court scheduled a hearing and the summons contained notice of Liming’s right to counsel if he was indigent.  Liming appeared at the hearing with appointed counsel.  The magistrate recommended that Liming be held in contempt and sentenced to thirty days in jail, however, the magistrate also recommended the sentence be suspended so long as Liming followed his purge conditions, including child support payments, for one year.

In 2010, the court granted ACCSEA’s motion to reduce the support payment, however, Liming did not make payments towards the arrearage and ACCSEA moved to impose the suspended contempt sentence.  Liming, who at the time was self-employed and indigent, requested counsel but the court refused, so he remained unrepresented at the hearing.  The court agreed that Liming had not made a good faith attempt to make payments towards the arrearage and should have complied with the existing obligation to make arrearage payments.  The court ordered Liming  unconditionally to serve ten days in jail, and left suspended the remaining twenty days.

Liming appealed this determination raising two assignments of error. First, that by refusing to appoint Liming an attorney to represent him at a hearing in which a jail sentence was imposed the trial court violated Liming’s right to counsel.  Second, because the hearing to impose the sentence was criminal in nature, Liming was entitled to counsel.  The Fourth District Court of Appeals affirmed the trial court’s decision, finding that the hearing was civil in nature – and therefore the Sixth Amendment didn’t apply – and that no due process right to counsel was violated because Liming had a diminished liberty interest in the thirty day sentence.

The Supreme Court accepted the case on conflict certification on the question of  whether a purge hearing to impose a suspended contempt sentence for failure to pay to child support is a civil or criminal proceeding.  Additionally,  Liming filed a discretionary appeal on two propositions, 1) due process entitles an indigent contemnor to counsel at a purge hearing if the court imposes jail time, and 2) when it is impossible for an indigent contemnor to comply with a purge order, the purge hearing is criminal in nature and therefore the contemnor is entitled to court-appointed counsel.  The Court accepted jurisdiction on both issues and consolidated the cases.

Liming argues that a purge hearing that imposes an unconditional jail sentence is a criminal proceeding and, as such, constitutional guarantees afforded to criminal defendants attach to the hearing.  Liming draws a distinction between civil contempt proceedings as coercive and criminal contempt proceedings as punitive.  Relying on a Sixth District decision holding that a purge hearing was criminal because it no longer sought to persuade the contemnor to comply with the order but rather punished the party for non-compliance, Liming argues that an original civil contempt action which imposes a coercive remedy may be converted into a criminal proceeding. 

Since the nature and purpose of the initial contempt hearing in 2008 was to coerce Liming to pay child support by imposing a jail sentence to be suspended so long as he complied with the purge conditions,  Liming argues that this hearing was a civil action.  However, the second contempt hearing in 2010 imposed a jail sentence without condition and was meant to punish Liming for failure to pay, the contempt proceeding was converted into a criminal action and Liming, as an indigent, had a constitutional right to appointed counsel. 

Additionally, Liming argues that at the June 2010 hearing the court failed to make any determination about his present ability to pay, nor was he afforded the chance to show it was impossible for him to comply with the court order. For these additional reasons, the contempt proceeding was criminal and he was entitled to counsel. Finally, Liming argues that because he was deprived of his liberty interest—the most fundamental interest protected by due process –and because his ability to pay was never determined, and assignment of counsel would have promoted judicial efficiency, due process entitles him to representation by counsel.

ACCESA argues that the Fourth District Court of Appeals was correct in finding the June 2010 purge hearing was a civil proceeding. Rather than being converting to a criminal proceeding, the purge hearing remains a civil action because the contemnor is not facing a new risk of imprisonment.  Further, the contemnor’s liberty interests at stake are diminished because he has already been sentenced, the risk of an erroneous decision is low since there has already been an original finding of contempt, and there is a stronger government interest in allowing the trial courts flexibility to ensure compliance with court orders.  Additionally, ACCESA points to last year’s U.S. Supreme Court decision in Turner v. Rogers,* which held that the Sixth Amendment does not govern civil contempt cases of child support payments, even when the contemnor is facing incarceration. 

ACSEA disagrees with Liming’s contention that the proceeding here was converted from a civil to a criminal one. The purpose of a civil contempt action is to coerce a party to pay his or her support obligation. For some, a finding of contempt and a suspended sentence provides sufficient motivation to comply.  For others, the sentence must be carried out if the court orders will have coercive effect in the future.  Therefore, imposing the suspended sentence continues the coercive purpose of encouraging contemnors to comply with court orders rather than to punish them.   At the outset of the hearing in 2010 the action was still civil since there was no actual order for incarceration at the time. 

ACCESA argues that the Turner case held that the dividing line between criminal and civil contempt proceedings in child support cases is not incarceration, but the contemnor’s ability to pay. In Liming’s case this was determined at the 2010 hearing in which his support payments were decreased.  The central holding of Turner was that the State need not provide counsel to an indigent noncustodial parent faced with incarceration if the State provides alternative  procedural safeguards that assure a fundamentally fair determination of the question of the obligor’s ability to comply with the support order.  Ohio has such procedures in place.

*Read an analysis of the Turner case here.

 Student Contributor: Katlin Rust

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