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Laura W. Morgan, Esquire Child Support, Attorney Discipline: Attorneys, beware. You risk not only contempt of court and contract damages for failure to pay child support, as well as prosecution under the Child Support Recovery Act for interstate failure to pay, you also risk disciplinary proceedings by your state bar. The latest case to invoke the state bar's Rules of Professional Responsibility to punish an attorney for the failure to pay child support is Colorado v. Hanks, decided by the Colorado Supreme Court on January 26, 1998. 1998.CO.28 (http://www.versuslaw.com) In this case, the attorney was suspended from the practice of law for his failure to pay child support, resulting in an arrears of over $20,000. The Hanks case is not an anomoly. Since 1990, over 150 cases have been decided in which an attorney faced disciplinary action for the failure to pay child support. See 16 Journal of the Legal Profession 289 (1991); 7 Divorce Litigation 95 (1995).
Child Support, Imputed Income, Criminal Contempt: There was much outcry at the recent decision in Moss v. Riverside County Superior Court, 17 Cal. 4th 396, 71 Cal. Rtpr. 2d 215, 950 P.2d 59 (1998). In this case, the California Supreme Court held that "a parent may not avoid criminal contempt sanctions for violating a child support order by asserting the defense of financial inability to comply with the order of that inability results from the parent's unexcused failure to seek or accept suitable employment." Neither the constitutional prohibition agsint involuntary servitude nor the bar to imprisonment for debt precludes the imposition of contempt or criminal sanctions on a parent who, having the ability to earn, willfully fails to do so. In essence, in order to assert as a defense "inability to pay," the alleged contemnor must show that the inability to pay is not the result of his/her own willful acts. The decision in Moss is in keeping with a trend across the country that utilized the doctrine of imputed income to hold parents to their support obligations. The Court of Appeals of Maryland amended the Maryland Rules of Civil Procedure effective January 1, 1997, and the new rules accomplished the same thing. Rule 15-207(e) authorizes a court to adjudicate a defendant guilty of civil contempt in an action to enforce a spousal or child support order, even though the defendant does not have the present ability to comply with the order. The decision in Moss, therefore, is merely an adaptation of a national trend.
Divorce, Personal Jurisdiction: No area of divorce practice seems to cause attorneys more headaches than establishing personal jurisdiction over a defendant when the parties have multiple residences and many state contacts. The very recent case of Dawson-Austin v. Austin, 1998.TX.7 (http://www.versuslaw.com), decided February 13, 1998, adhered to the majority rule concerning the exercise of jurisdiction when the only contact with the forum state is that the defendant has property there. In Dawson-Autsin, the husband brought property into Texas consisting of shares of stock. The Texas Supreme Court held that the husband's unilateral acts could not work to confer in rem jurisdiction on the court to divide the property. In order for in rem jurisdiction to exist to divide property, the property must be in the state as the result not of a party's unilateral acts, but with the consent of the other spouse. The court held that the United States Supreme Court case of Shaffer v. Heitner, which abolished quasi in rem jurisdiciton, demanded this result. The rule announced in this case is the majority rule, adhered to by most other states. This case may be contrasted with a recent case from Georgia, Abernathy v. Abernathy, 482 S.E.2d 265 (Ga. 1997), decided at the end of 1997. In Abernathy, the Georgia Supreme Court held that the presence of property in the state gives the court jurisdiction to divide the property, regardless of the circumstances under which the property arrived in the state. The court reasoned that the United States Supreme Court decision in Burnham v. Superior Court, whereby the High Court allowed the exercise of personal jurisdiction based on tagging the defendant in the state, similarly allows a state to "tag" property and exercise jurisdiction over the property, notwithstanding Shaffer v. Heitner. The Abernathy decision is in the minority. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690
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