A Georgia court can hold a parent in contempt for not paying child support, but only if the parent was able to pay and chose not to.
How a Contempt Motion Works
Under OCGA 19-6-28(a), a court may punish a parent who violates a support order “to the same extent as is provided by law for contempt.” Under OCGA 19-6-28(b), the motion must be served with a hearing date “no later than 30 days from the date of service of the motion,” a requirement met in McCarthy v. Ashment, 353 Ga. App. 270 (2019), by a rule nisi served within that window.
The Nonpayment Must Be Willful
Once the arrearage is shown, the burden shifts to the parent who did not pay. In Cross v. Ivester, 315 Ga. App. 760 (2012), the Court of Appeals held that “[i]nability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available and is still unable to secure the funds necessary to enable compliance with the court’s order.” A father who owned three properties but never revealed what they earned did not meet that burden.
Likewise, in Claybrooks v. Claybrooks, 364 Ga. App. 157 (2022), a mother who lost her job during the pandemic was still in willful contempt, because her 401(k) held about $50,000 that could have paid the $7,825 she owed.
When It Is Not Willful
In Wright v. Wright, 367 Ga. App. 15 (2023), a husband released from prison after nearly three decades was jailed for contempt. The Court of Appeals reversed because “there was no evidence that Husband’s failure to pay was wilful.”
Even so, the money is still owed. In Crist v. Crist, 243 Ga. 796 (1979), the trial court declined to find a father in contempt but ordered him to pay the arrearage within 60 days, and the Georgia Supreme Court affirmed.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!