Legal Memorandum

Legal Memorandum - I NTEROFFICE MEMORANDUM TO: JULIA DUNLAP...

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INTEROFFICE MEMORANDUM TO: JULIA DUNLAP FROM: SUBJECT: CARMEN LEAKE – CHILD SUPPORT CRIMINAL CONTEMPT DATE: 12/15/04 STATEMENT OF FACTS Our client, Carmen Leake is a full time graduate student in San Diego, California. She is completing her Ph.D. in paleontology, which requires her to make frequent trips to other countries to do research. Because of the demands to complete her dissertation, she is not able to work regular jobs. Her only sources of income are student loans and fees she charges for tutoring services. Ms. Leake is divorced and has two children who live with her former husband, also in San Diego, California. A year ago, Ms. Leake was ordered by the court to pay child support for her two children. She has not complied with the court order since the divorce was final. Her former husband has filed an Order to Show Cause for contempt to enforce the support order. There is a contempt hearing scheduled in family court. QUESTION PRESENTED Under California Law, can criminal sanctions be imposed for non-payment of child support where a parent’s inability to pay is due to unwillingness to work, if that parent is taking
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necessary measurements to make changes in order to better provide for his or her children in the future? SHORT ANSWER Yes, courts are empowered to penalize individuals for violation of valid court orders; as a result, a child support obligor who disobeys the order of a court may be found in criminal contempt. DISCUSSION General Principles. Generally, a judgment or order made or entered may be enforced by the court by execution, the appointment of a receiver, contempt, or by other order as the court in its discretion determines from time to time to be necessary. Cal. Fam. Code § 290 (Deering 2004). In the present case, Ms. Leake was ordered by the court to pay child support for her two children. An award of child support payments in divorce proceedings may be enforced in contempt proceedings when the obligor parent violated the terms of the support order. 24A Am Jur 2d Divorce and Separation § 1069 (2004). This decision was based in her ability to work and her earning capacity at the time the order was issued. Cal. Fam. Code § 4053 (Deering 2004) states that each parent should pay for the support of the children according to his or her ability to earn. Ms. Leake then decided to pursue her education and advance her degree. This is considered by the courts not to be in the best interest of the children since a parent's first and   principal obligation is to support his or her minor children according to the parent's circumstances and station in life. Id . The court's orders need not be based on actual income or property of the husband and may be based solely on his ability to earn money. Pencovic v. Pencovic , 45 Cal. 2d 2
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97; 287 P.2d 501 (1955). After not paying for the support of her children, Ms. Leake faces a criminal contempt and could be found guilty of 12 counts of contempt. The claim falls under the three years statute of limitations for contempt for failure to pay child support, and separate
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Legal Memorandum - I NTEROFFICE MEMORANDUM TO: JULIA DUNLAP...

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