Also known as: abilities to pay · capacity to pay · ability-to-pay principle
Written by attorneys — see sources below.
A factual determination whether a party possesses sufficient financial resources to comply with a court-ordered obligation or to avoid coercive sanctions for noncompliance. Courts must make an express finding on this issue before imposing incarceration in civil contempt proceedings for nonpayment of child support. Alternative procedural safeguards such as notice and an opportunity to present evidence may substitute for appointed counsel when the determination is required.
Aaron Adams appeared without counsel at a show-cause hearing after falling behind on child support payments to Amelia Amari. The court issued a finding of willful contempt and ordered twelve months of incarceration without inquiring into his current income, assets, or job prospects. Because no determination was made that Aaron had the resources to pay the arrears, the order cannot stand.
Arthur Abrams was prosecuted for criminal contempt after missing several support payments to Alice Atkins. The trial court instructed the jury that it could presume Arthur had the means to pay unless he proved otherwise. The instruction relieved the prosecution of its burden to establish ability to pay beyond a reasonable doubt.
Alta Sue Adams married Phillip William Feiock in 1968, and the couple had three children. In 1973, Feiock left the family. In January 1976, a California court entered an interlocutory judgment of dissolution of marriage. The court awarded custody of the children to Mrs. Feiock and ordered Feiock to pay child support beginning February 1, 1976. The payments were set at $35 per child per month for the first four months and $75 per child per month starting June 1, 1976. After the final judgment, Mrs. Feiock and the children moved to Ohio. Respondent made child support payments only sporadically and stopped making any payments by December 1982. Mrs. Feiock filed a complaint in Ohio under the Uniform Reciprocal Enforcement of Support Act. The Ohio court transmitted the complaint to the Superior Court of California for the County of Orange. On June 22, 1984, after a hearing, the California court ordered Feiock to pay $150 per month on a temporary basis beginning July 1, 1984. Feiock made payments only for August and September 1984. In 1985, the Orange County District Attorney filed orders to show cause alleging nine counts of contempt. At the August 9, 1985 hearing, the petitioner established a prima facie case of contempt. Respondent testified about his ability to pay but was found in contempt on five counts. He received a suspended sentence of 25 days in jail and three years of probation. Probation conditions required $150 monthly support payments and $50 monthly payments on the $1,650 arrearage. Respondent petitioned for a writ of habeas corpus in the California Court of Appeal. The court annulled the contempt order, holding that section 1209.5 imposed an unconstitutional mandatory presumption. The California Supreme Court denied review. The United States Supreme Court granted certiorari.
View caseAlbert Allen sought to marry while subject to an existing child-support judgment. The court refused permission solely because Albert had not yet paid all arrears. The refusal rested on an assumption that any parent under an order necessarily possesses the ability to pay, without examining his actual income or assets.
In January 1972 a paternity action was instituted against Roger G. Redhail in Milwaukee County Court alleging that he was the father of a baby girl born out of wedlock on July 5, 1971. After Redhail admitted paternity the court entered an order on May 12, 1972 adjudging him the father and ordering him to pay $109 per month as support until the child reached age eighteen. From May 1972 until August 1974 Redhail was unemployed and indigent and consequently was unable to make any support payments. As of December 1974 there was an arrearage in excess of $3,700. The child had been a public charge since her birth receiving benefits under the Aid to Families with Dependent Children program. In September 1974 Redhail applied for a marriage license in Milwaukee County. County Clerk Thomas E. Zablocki denied the application because Redhail had not obtained a court order pursuant to Wis. Stat. § 245.10(1). Redhail would not have been able to satisfy either statutory prerequisite for permission to marry. After the license denial Redhail filed a class action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Wisconsin. The complaint alleged that the statute violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. A three-judge court was convened pursuant to 28 U.S.C. §§ 2281, 2284. The plaintiff class was certified under Fed. R. Civ. P. 23(b)(2). After the parties filed a stipulation of facts and briefs were submitted the three-judge court held the statute unconstitutional under the Equal Protection Clause and enjoined its enforcement. Zablocki brought a direct appeal pursuant to 28 U.S.C. § 1253. The Supreme Court noted probable jurisdiction and affirmed the District Court judgment.
View caseAmber Alonzo, an indigent class member in a securities action, received notice that she must pay a share of transcript and mailing costs to remain in the class. She could not afford the assessment. The court recognized that requiring payment from class members without means effectively denies them participation.
In May 1966 petitioner Morton Eisen filed a class action in the United States District Court for the Southern District of New York on behalf of himself and all other odd-lot traders on the New York Stock Exchange. The complaint charged respondent brokerage firms Carlisle & Jacquelin and DeCoppet & Doremus with monopolizing odd-lot trading and setting the differential at an excessive level in violation of the Sherman Act. It also charged the Exchange with failing to regulate the differential in violation of the Securities Exchange Act of 1934. The class was later limited to traders during the period from May 1, 1962, through June 30, 1966. Throughout that period odd-lot trading was handled exclusively by special dealers. The two respondent firms together handled 99 percent of the Exchange's odd-lot business. They were compensated by a differential of 12.5 cents per share on stocks trading below $40 and 25 cents per share on stocks trading at or above $40. Petitioner's individual stake in the damages sought was $70. The District Court dismissed the suit as a class action in September 1966. The Court of Appeals issued Eisen I, holding the dismissal appealable as a final order under 28 U.S.C. § 1291. It also issued Eisen II, reversing the dismissal and remanding for further inquiry into the requirements of Rule 23, including notice, manageability, and adequacy of representation. After evidentiary hearings on remand, the District Court in 1971 held the suit maintainable as a class action. The District Court found that some 2,250,000 class members could be identified by name and address with reasonable effort. Individual notice to them would cost approximately $225,000 at six cents per letter. It approved a limited notice plan costing about $21,720. After a preliminary hearing on the merits, the court ordered respondents to bear 90 percent of that cost. Respondents appealed. In Eisen III the Court of Appeals held that individual notice to all identifiable members was required, that the representative plaintiff must bear the notice costs, and that the class action was unmanageable. The Supreme Court granted certiorari in 1973.
View caseAmelia Amari sought to appeal a judgment that terminated her parental rights. The state required prepayment of transcript costs before the appeal could proceed. Because Amelia had no funds, the fee requirement blocked review of a judgment affecting a fundamental interest.
Griffin and Crenshaw were tried together and convicted of armed robbery in the Criminal Court of Cook County, Illinois. Immediately after their conviction, they filed a motion in the trial court asking that a certified copy of the entire record, including a stenographic transcript of the proceedings, be furnished to them without cost. They alleged that they were poor persons with no means of paying the necessary fees to acquire the transcript and court records needed to prosecute an appeal. These allegations were not denied. Under Illinois law, full direct appellate review of alleged errors by a writ of error requires the defendant to furnish the appellate court with a bill of exceptions or report of proceedings at the trial certified by the trial judge. As Illinois concedes, it is sometimes impossible to prepare such bills of exceptions or reports without a stenographic transcript of the trial proceedings. Indigent defendants sentenced to death are provided with a free transcript at the expense of the county where convicted. In all other criminal cases, defendants needing a transcript, whether indigent or not, must themselves buy it. The trial court denied the motion without a hearing. Griffin and Crenshaw then filed a petition under the Illinois Post-Conviction Hearing Act. Only questions arising under the Illinois or Federal Constitution may be raised in proceedings under this Act. A companion state act provides that indigent petitioners under the Post-Conviction Act may, under some circumstances, obtain a free transcript. The effect is that indigents may obtain a free transcript to obtain appellate review of constitutional questions but not of other alleged trial errors such as admissibility and sufficiency of evidence. In their Post-Conviction proceeding, petitioners alleged that there were manifest nonconstitutional errors in the trial which entitled them to have their convictions set aside on appeal. The only impediment to full appellate review was their lack of funds to buy a transcript. These allegations have not been denied. This petition, like the first, was dismissed without hearing any evidence. The Illinois Supreme Court affirmed the dismissal solely on the ground that the charges raised no substantial state or federal constitutional questions. Counsel for Illinois concedes that these petitioners needed a transcript in order to get adequate appellate review of their alleged trial errors. There is no contention that petitioners were dilatory in their efforts to get appellate review, or that the Illinois Supreme Court denied review on the ground that the allegations of trial error were insufficient. We must therefore assume for purposes of this decision that errors were committed in the trial which would merit reversal. The petitioners could not get appellate review of those errors solely because they were too poor to buy a stenographic transcript. The Supreme Court granted certiorari.
View caseAurora Biotech was found liable for an intentional tort and faced a punitive award. The jury was instructed to consider the company's financial condition when setting the amount. The instruction ensured the penalty would deter without destroying the defendant's ongoing operations.
In March 1989 the Exxon Valdez supertanker grounded on Bligh Reef in Prince William Sound, Alaska, releasing millions of gallons of crude oil. Exxon Shipping Company, the vessel's owner and now known as SeaRiver Maritime, Inc., together with its parent Exxon Mobil Corporation, confronted widespread liability from the spill. The company settled a class action brought by more than 32,000 commercial fishermen, Native Americans, landowners, and others for $2.5 billion in compensatory damages. Exxon also pleaded guilty to violations of the Clean Water Act, the Migratory Bird Treaty Act, and the Refuse Act, paying $150 million in criminal fines, and spent an additional $2.1 billion on cleanup. Respondents, other persons whose businesses and livelihoods were disrupted by the spill, filed this civil action seeking punitive damages. The United States District Court for the District of Alaska divided the plaintiffs into three classes and conducted a three-phase trial. In the first phase the jury found Exxon Shipping Company and Captain Joseph Hazelwood, the ship's master, reckless and therefore potentially liable for punitive damages. In the second phase the jury awarded $5 billion in punitive damages against Exxon. The District Court later reduced the punitive award to $2.5 billion. On appeal the Ninth Circuit reinstated the jury's original $5 billion punitive damages award. The Supreme Court granted certiorari to consider whether the $2.5 billion punitive damages award was excessive under maritime law.
View caseNo. The Due Process Clause does not require appointed counsel when the opposing party is unrepresented and the state supplies alternative safeguards that include notice of the importance of ability to pay, an opportunity to present evidence, and an express judicial finding on that issue.
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The prosecution must prove ability to pay beyond a reasonable doubt. A statute that presumes ability to pay or shifts the burden to the defendant violates due process.
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A defendant's ability to compensate victims without shutting down operations is one factor used to decide whether an intentional invasion is unreasonable. If compensation remains feasible, the invasion is more likely to be held unreasonable.
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When collection of a damages judgment is doubtful because of statutory caps or budget limits, damages are less adequate and specific performance becomes more appropriate.
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…are scarce, the State's courts seem to follow the general rule that child-support orders are heavily influenced by the parent's ability to pay. See H. Clark, Law of Domestic Relations 496 (1968); see also Miller v. Miller , 67 Wis. 2d 435, 227 N. W. 2d 626 (1975). A parent who is so disabled that he will never earn enough to pay…