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Child Support Bench Book: Indirect Civil Contempt for Failure to Pay Child Support TABLE of CONTENTS

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Child Support Bench Book: Indirect Civil Contempt for Failure to Pay Child Support TABLE of CONTENTS Child Support Bench Book: Indirect Civil Contempt for Failure to Pay Child Support TABLE OF CONTENTS I. Introduction ................................................................................................................................ 1 A. Legal Authority................................................................................................................... 1 II. Overview of Contempt Action .................................................................................................. 2 A. Prima Facie Case & Burden of Proof................................................................................. 2 B. Purpose................................................................................................................................ 2 C. Sentencing ........................................................................................................................... 3 D. Court Liaison Program........................................................................................................ 3 E. Is Contempt a Good Remedy?............................................................................................. 3 III. Screening Process .................................................................................................................... 4 A. Review and Research.......................................................................................................... 4 B. Assessing Case against Obligor .......................................................................................... 4 IV. Court Preparation..................................................................................................................... 5 A. Pleadings ............................................................................................................................. 5 B. Service of Process ............................................................................................................... 5 V. Court Proceedings..................................................................................................................... 6 A. Arraignment ........................................................................................................................ 6 B. Bench Warrant..................................................................................................................... 7 C. Trial ..................................................................................................................................... 8 1. Burden of Proof.............................................................................................................. 8 2. Defenses at Trial ............................................................................................................ 9 3. Finding of Not Guilty..................................................................................................... 9 4. Finding of Guilt.............................................................................................................. 9 5. Plea Agreement.............................................................................................................. 9 D. Evidentiary Hearing on Ability to Purge ............................................................................ 9 VI. Judgment on Child Support Contempt Citation..................................................................... 10 VII. Sentencing ............................................................................................................................ 10 VIII. Appeals................................................................................................................................ 11 IX. Subsequent Contempts........................................................................................................... 11 Appendices.................................................................................................................................... 12 A. Appendix A - Pleadings .................................................................................................... 14 1. Contempt Cover Sheet ................................................................................................. 15 2. Application for Contempt Citation .............................................................................. 16 3. Judgment on Child Support Contempt Citation........................................................... 21 4. Waiver of Rights on Contempt .................................................................................... 30 5. Bench Warrant ............................................................................................................. 32 6. Motion and Order Recalling Bench Warrant ............................................................... 35 7. Motion and Order to Disburse Bond............................................................................ 37 8. Contempt Sentencing Order......................................................................................... 40 9. Acknowledgment of Rights ......................................................................................... 46 10. Contempt Failure to Appear Order ............................................................................ 48 11. Acknowledgment of Receipt, Waiver of Service and Entry of Appearance............. 52 12. Order of Release from Citation for Contempt ........................................................... 53 B. Appendix B - Legal Authority: Oklahoma Constitution................................................... 55 1. Art. II, § 19, Trial by jury ............................................................................................ 56 2. Art. II, § 25, Contempt - Definition - Jury trial - Hearing ........................................... 56 C. Appendix C Legal Authority: Oklahoma Statutes ............................................................ 57 1. 12 O.S. § 68, Appearance Bond - Right to Enforce..................................................... 58 2. 21 O.S. §§ 4 - 6, Two Types of Crimes, Definition of Felony, and Definition of Misdemeanor..................................................................................................................... 59 3. 21 O.S. § 565, Definition of Direct Contempt and Indirect Contempt........................ 59 4. 21 O.S. § 566, Punishment for Contempt - Failure to Comply Child Support and Other Orders................................................................................................................................ 59 5. 21 O.S. § 566.1, Indirect Contempt for Failure to Comply with Order for Child Support, Child Support Arrears, or Other Support ........................................................... 60 6. 21 O.S. § 567, Indirect Contempts - Notice - Trial by Jury - Appearance Bond......... 62 7. 43 O.S. § 139.1, Revocation, Suspension, Nonissuance or Nonrenewal of License for Noncompliance with Support Order ................................................................................. 63 8. 43 O.S. § 140, Problem-Solving Court Program ......................................................... 68 9. 56 O.S. § 240.10, Requirement of Child Support Obligor's to Maintain Gainful Employment - Underemployed Defined - Notice to Obligor ........................................... 69 D. Appendix D - Legal Authority: District Court Rules........................................................ 71 1. Rule 8.3, Indirect Contempt for Failure to Pay Child Support - Purge Fee................. 72 2. Rule 29, Indigent Defendant in Civil Contempt Action - Right to Counsel - Attorney Fees ................................................................................................................................... 73 E. Appendix E - Legal Authority: Caselaw ........................................................................... 74 1. Turner v. Rogers, 564 U.S. ____, 131 S.Ct. 2507 (2011) ........................................... 75 2. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423 (1988)................................................ 91 3. Walker v. McLain, 768 F.2d 1181.............................................................................. 111 4. Clark v. Most Worshipful St. John's Grand Lodge of Ancient Free and Accepted Masons of Oklahoma, 181 P.2d 229, 1947 OK 84 ......................................................... 116 5. Davis v. Davis, 739 P.2d 1029, 1987 OK CIV APP 41............................................. 122 6. Henry v. Schmidt, 91 P.3d 651, 2004 OK 34............................................................. 124 7. Whillock v. Whillock, 550 P.2d 558, 1976 OK 51 ..................................................... 131 F. Appendix F - Legal Authority: Jury Instructions for Child Support Contempt Actions . 135 1. Oklahoma Uniform Jury Instructions ........................................................................ 136 2. Suggested Jury Instructions ....................................................................................... 138 I. INTRODUCTION Indirect Civil Contempt is an enforcement remedy used when a party fails to comply with a court order. “Indirect” means that the failure to comply with an order of the court happened outside of the presence of the court. It is a remedy sometimes used when a noncustodial parent fails to pay court ordered child support. Contempt is a remedy only available in equitable proceedings. It is generally used to coerce, not to punish, someone who has
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