Roberta Heiman has an article in the Evansville Courier Press on a topic with which I am intimately familiar – collection of debts in a small claims court. Apparently things run a little differently in southern Indiana. There appears to be a local practice where judgment debtors are held in contempt for defaulting on payment agreements. The article mentions a case out of Perry County I discussed awhile back where the judge apparently threatened the judgment debtor with jail if she didn’t make a payment arrangement.
It also mentions a situation in Evansville where a judgment debtor was going to be held in contempt for failing to honor an agreed order on a prior payment arrangement.
Debtors prisons aren’t permitted in Indiana. In the counties where I practice, non-payment isn’t going to earn you a contempt citation. What does happen, quite frequently, is that people get served with orders to appear and testify as to their income and assets, fail to appear, and then have writs issued for their arrest to compel their testimony. A person can also be held in contempt for failing to appear if they cannot show good cause for their failure.
Even though I think that debtors’ rights advocates are correct, generally, when they protest the practice of locking people up for non-payment; they go too far when they suggest that creditors can’t force them back into court repeatedly to inquire about their income and assets. A creditor is not going to have independent knowledge of the debtors’ financial situation. I can’t tell you the number of times I have let a judgment sit for awhile, and call the judgment debtor into court after many months, only to find that the person is no longer employed but held a job for a period of time between court dates. Had I been forcing the person into court every month, I would have discovered income subject to garnishment.
Returning to the southern Indiana practice of holding people in contempt for failing to abide by a payment agreement – certainly I think it’s inappropriate if, during the period of non-payment, the debtor never had any attachable income or assets; for example, if all they ever had during this period was Social Security income. But what if the person entered into an agreement resulting in a court order to pay $100 per month; had garnishable income in excess of the $100 per month; but refused to pay anyway. It seems to me that, in that situation, there is a case to be made for contempt proceedings: the court has ordered you to do something, you have failed to do it, and you cannot show any legal excuse for your failure.
In any case, if you hear one of these “debtors prisons” stories, always pay attention to what, precisely, led to the person’s arrest. I’ve had any number of judgment debtors complain about being arrested for a debt when the reason for their arrest was their failure to obey a court order to appear and testify as to their income and assets. My somewhat unsympathetic attitude over the years has been that, if you don’t have a job, generally you can make time to go to court.
The Indiana Constitution (maybe the US Const., too; I’m not sure) prohibits incarcerating people solely based on the inability to pay. This is as true of child support payments as it is of court costs or collections proceedings.
However, people can be imprisoned for failure to pay if they are able to pay but simply don’t…I’m directly familiar with this from child support proceedings, but the option is also available for other proceedings.
It’s not a great option, however, as what the opposing parties really want to happen is for the debt or other obligation to be paid. Which won’t happen if the individual is in prison.
Check out the recent decision by the Court of Appeals in Carter v. Grace Whitney Homes. There should be no threat of incarceration for failure to pay a judgment, no repeated court appearances unless there is reason to believe that the debtor has new income or assets, and no “personal order of garnishment” against someone with no garnishable income.
The second point is the only part of the Court of Appeals decision that made me raise an eyebrow. I understand not bringing the debtor in with such frequency that it’s harassment, but I’m not sure how a creditor is reasonably supposed to discover new income and assets without requiring the debtor to provide the information.
how is it that the courts can hit you with 16 years . 2 class c felonys on child support when the debt is owd to the mother of the children and not the county or state would that not be a debt yes it would so there for it would be getting convicted for owing a debt. you get less time for killing a person just gos to show you indiana can do as thay wish