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Sep 5 2014

90 days jail for disobeying court order upheld by Wisconsin Appeals Court

In a decision filed in August, the Court of Appeals for Wisconsin upheld the contempt decision of the Ozaukee County circuit court. The appeal arose from the finding by Judge Sandy A. Williams that a Mr. Jeffrey Clark in contempt and imposing upon him a ninety-day term in jail for his failure to obey a court order to pay guardian ad litem (GAL) fees. Clark v. Clark, Appeal No. 2013AP2879.

In a 2005 judgment of divorce, Clark was ordered to pay his share of the GAL fees.  Five years later Ozaukee county child support agency initiated contempt proceedings against Clark for noncompliance with his child support obligations.  At one of the child support contempt hearings, the court inquired into Clark’s payment of the GAL fees.

Clark stated that he had not made any payments, that he “believe[d] that debt was dismissed in bankruptcy court.” He pledged that he would bring documentation to the next hearing. The court ordered Clark to start paying down the GAL debt in increments of $50 per month.

“I have never seen anyone try and manipulate and shirk their responsibility as much as [Clark],” said Judge Williams

In the months afterward, Clark did not $50 per month, did not provide any bankruptcy documentation, and did not follow up on employment opportunities. Accordingly the court found Clark in contempt and imposed a ninety-day term in jail. The court did include a purge condition: if Clark paid half of what was owed in GAL fees and $50 per month going forward he could avoid jail.  Clark then appealed.

Under law a circuit court may use its discretion to find a person in  contempt of court if he or she has the ability but refuses to follow the order.  Benn v. Benn, 230 Wis. 2d 301, 308-09, 602 N.W.2d 65 (Ct. App. 1999).  Failure to pay support provides grounds for a contempt finding if 1) the person has the ability to pay and 2) his or her refusal to pay is willful and with the intent to avoid payment.  State v. Rose, 171 Wis. 2d 617, 623, 492 N.W.2d 350 (Ct. App. 1992).  The burden is on Clark to show that he is not in contempt.  Id.

The court found that Clark had the ability to pay but was intentionally shirking his responsibility by not paying.  Clark did not provide any documentation to back up his assertion.  Clark also did not present any evidence to show that he was unable to pay the $50 per month as ordered by the court.  Because the trial court record contained evidence to support the judge’s finding and as Clark has failed to meet his burden to show he was not in contempt, the court’s decision was not  overturned.

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