Altenhofen and Vanden-Busch

Defendant may be held in contempt for failure to pay child support if able to afford a portion of the ordered amount but fails to pay.

At the conclusion of divorce proceedings, Defendant was ordered to pay $604 per month for child support. Defendant did not make timely child support payments. The State filed a motion to hold Defendant in contempt for failure to pay child support. In response, Defendant stated he had insufficient funds to pay for child support. At Defendant’s contempt hearing, the trial court learned that Defendant had made multiple purchases for pleasure, despite claiming inability to make child support payments. The court found that despite Defendant’s inability to pay $600 a month, Defendant could have paid a portion of this amount, and did not. The trial court found Defendant in contempt and imposed 60 months of bench probation. Defendant appealed this judgment, contending that the trial court erred in its assignation of contempt and in the probation sentence, as the probation was considered punitive in nature. Regarding the first claim, the Court held that a defendant can still be held in contempt for failure to pay support if the defendant is able to pay at least some portion of the court ordered amount. Regarding the second claim, the Court found that the trial court erred in its assignation of bench probation because the trial court was only authorized to prescribe remedial, not punitive, sanctions. Reversed in part, affirmed in part, and remanded regarding probation assignation.