In sentencing litigants to jail time for civil contempt, a judge needs to find that the litigant holds the keys to his own jail cell – that is, that he or she has the means to comply with the order at the time the sentence is imposed.  I once sentenced an attorney who represented himself in a divorce case to jail for steadily refusing to file a financial statement.  He held the jail cell keys – “just file the financial statement and you are out of jail!”

           It was tougher to impose a jail sentence when there was less certainty about the litigant’s ability to comply.  When the cases involved money, which was usually back child support, I needed to find that the litigant had the ability to pay the “purge” amount. That was the amount of money they needed to pay “on the spot” in order to avoid the jail sentence.  Time after time I would hear stories about the inability to pay – “Judge, I don’t have the money;” “Your Honor, where am I going to get that kind of money?” or “I’m barely getting by.” – and time after time I would hear the counter arguments – “I am facing eviction!”  “How are the kids going to eat?”  “This deadbeat hasn’t paid a dime.”  In these cases, there is great tension between law and instinct. A judge must follow the law, but instinct nudges us to take a closer look at or for evidence and, will sometimes push us to the outer limits of the law.

            One of my contempt cases involved a father who was $15,000 behind in child support; the mother was representing herself and was in no position to put in evidence regarding the father’s ability to pay.  The case unfolded in the typical manner.  The father claimed an inability to pay either the child support order of $125.00 per week or anything toward the arrearage.  The mother was in tears, unsure how she would meet the children’s needs for the next day, let alone the next year.

            As the hearing carried on, one of the court officers slipped me a note.  “Gucci shoes - $500.” It may have been inappropriate; perhaps she thought that since a judge’s bench is slightly raised, I couldn’t quite see the footwear of those before me.  Nevertheless, a minute or two later, I took it up with the litigant.  “What about those shoes?” I asked.  “How much did they cost?”  “Oh, Your Honor, those were a gift from my girlfriend.”  “What about your watch – what kind is it?” Now his voice was a little quieter – “Um.  A Rolex.”  “And how did you pay for that watch?”  “It was a gift too.”  I took another look at the financial statement he had filed –income, assets, debts, all zeroes.  Instinct took over, it was now just a matter of determining what number the “purge” amount should be.

            “You are sentenced to jail for 60 days for failure to pay child support.  You can get out of jail by paying one half of the back child support you owe - $7,500.  You will be released as soon as you pay.”  The court officers put handcuffs on the man.  As they started to escort him to the door for transportation directly to South Bay House of Correction, he shot a glance at his girlfriend. She jumped up and moved quickly towards him.  “Hold on,” he said, and he asked to be un-cuffed so that he could remove a set of keys from his pocket.  He fished the keys out of his pocket and handed them to his girlfriend.  “It’s in the trunk of the car.”  The girlfriend returned to the courtroom with $7,500 in cash.  The litigant was released.  It turned out he had the keys to his jail cell in his pocket the whole time.