High Court Approves Jailing of Delinquent Fathers

Times Staff Writer

The Supreme Court ruled Wednesday that fathers who fail to pay court-ordered child support may be jailed or fined, as long as those civil penalties are lifted when they pay up.

The decision, in a case from Orange County, was hailed as an important victory by local prosecutors and women's advocates because it makes clear that they can seek tough penalties against delinquent fathers.

The court opinion largely nullifies a 1986 California court order that required prosecutors to prove that delinquent fathers could afford to pay their child support before seeking penalties.

"It says appropriate steps can be taken to enforce compliance," said Marsha Levick, executive director of the NOW Legal Defense Fund in New York.

If the 1986 ruling had been upheld, "it would have pulled the rug out from under enforcement in every state," Levick said.

In its decision, however, the high court said California may not punish a non-paying father by locking him up for a fixed period of time--only until he makes the payments or demonstrates to the court that he is unable to make them.

The high court majority was confused on how California courts handle contempt orders against non-paying parents, so it sent the case back to an appellate court in Santa Ana for further hearings.

Nationwide, only about half of the 4 million mothers who are entitled to child support actually get the amount they are due, federal attorneys told the court, adding that the fathers' failure to pay costs the government more than $1 billion a year in higher welfare costs. (They said that in about 5% of such cases, mothers, rather than fathers, are in default.)

The ruling came in the case of Phillip and Alta Sue Feiock, who were divorced in 1976. An Orange County court ordered the father to pay $225 a month in support for his three children. Over the next six years, Feiock made only occasional payments, and by late 1982, he quit entirely.

Responding to his wife's pleas, a judge called Feiock before the court in 1984. The father said he was self-employed and making little money and could not afford to pay. The court reduced his monthly obligation to $150, but Feiock again stopped paying after only two months. This time, county attorneys moved to have Feiock held in contempt of court. Although Feiock insisted he could not afford the payments, the judge sentenced him to 25-day jail term and suspended the sentence with the direction that Feiock resume the $150-a-month payments plus $50 a month toward his past debt.

However, a state appellate court in Santa Ana ruled the contempt finding unconstitutional, concluding the father was found guilty because he could not prove himself innocent. It was up to county prosecutors to prove Feiock guilty by showing he could afford the payments, the court said.

In their appeal to the Supreme Court, Orange County attorneys contended the ruling would make a "travesty" of child support enforcement by permitting self-employed fathers to shirk their obligations.

"There are not enough investigators available to have one sitting in each debtor's driveway," county attorneys told the high court.

Justice Byron R. White, writing for a five-member majority, said a California court could hold Feiock in civil contempt as a means of forcing him to comply. Both jail terms and fines are permissible as coercive measures. However, the court could not apply criminal penalties to punish a father without proof of his guilt, he added.

The high court sent the case back to the Santa Ana court to determine whether the sentence given Feiock was fixed or whether it could be erased if he paid up. If California contempt orders are "purged" as soon as the father complies, they are valid, White concluded.

Three other justices--Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia--wanted to go even further in upholding the California court, saying they would have upheld the contempt order against Feiock without a further hearing. (Cecil Hicks vs. Feiock, 86-787)

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