Peterson v. Roden

• Decision Date: 04 August 2006
• Docket Number: 2050394.
• Citation: 949 So.2d 948
• Parties: George W. PETERSON v. Tyler RODEN, Sheriff of Cullman County.
• Court: Alabama Court of Civil Appeals

949 So.2d 948

George W. PETERSON v. Tyler RODEN, Sheriff of Cullman County.

2050394.

Court of Civil Appeals of Alabama.

August 4, 2006.

Carl E. Chamblee, Sr., Birmingham, for appellant.

Submitted on appellant's brief only.

THOMPSON, Judge.

George W. Peterson appeals from the denial of his petition for a writ of habeas corpus. We reverse and remand.

On October 26, 2005, the trial court entered an order finding Peterson in civil contempt for failing to pay child support. The trial court ordered Peterson incarcerated until he paid $13,443.70, representing past-due child support and interest. On January 26, 2006, Peterson petitioned the trial court for a writ of habeas corpus, seeking his immediate release from incarceration given his inability to pay the past-due child support. Following a hearing on Peterson's petition, the trial court entered an order on February 7, 2006, denying the petition. Peterson timely appealed.¹

Peterson's sole contention on appeal is that the trial court committed reversible error by denying his petition for a writ of habeas corpus because, he argues, he established that he was unable to satisfy his court-ordered child-support obligation.

"Imprisonment for contempt should never be imposed by a judge where failure to pay [court-ordered support] is not from contumacy, but from inability to comply with the order." Ex parte Talbert, 419 So.2d 240, 241 (Ala.Civ.App.1982).

"Incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's order. State v. Thomas, 550 So.2d 1067, 1073 (Ala.1989). When the punishment no longer has any coercive effect, it becomes impossible to enforce. Id. `Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.' Id. Therefore, although one may be guilty of contempt for failing to comply with a court's order imposing a child support obligation, `imprisonment as a means of coercing payment, may not be imposed if there is shown a present inability to pay.' Ex parte Talbert, 419 So.2d at 241 (emphasis added)."

Savage v. Ingram, 675 So.2d 892, 894 (Ala. Civ.App.1996).

At the time of the hearing on his habeas corpus petition, Peterson had been incarcerated for almost four months. Before his incarceration, Peterson had a job at which he earned an average of $10 per hour. As a result of his incarceration, Peterson lost his job. Shortly after he was incarcerated, Peterson's former employer contacted the work-release director for the Cullman County Correctional Facility, to determine if Peterson could return to work for the company while he was incarcerated. In response, Peterson's placement in the work-release program was expedited. Peterson participated in the work-release program for approximately six weeks before he was terminated from the program. According to the work-release director, Peterson was terminated from the work-release program after he had been found to have violated program rules.

Peterson testified that, at the time of the hearing on his habeas corpus petition, he had no cash or assets that he could liquidate to pay the child-support arrearage he owed. According to Peterson, he had $20 in his jail account. Peterson testified that he shares a house with his mother and that he owns the house but he has no equity in the house. According to Peterson, the house has an outstanding mortgage indebtedness of $48,000. Peterson testified that, before his incarceration, he paid a $400 monthly mortgage payment on the house. However, Peterson explained that he had been unable to make any mortgage payments on the house since his incarceration.

According to Peterson, his house was burglarized while he was incarcerated. Peterson testified that valuable personal items were stolen, including televisions, stereos, and air-conditioning equipment, among other things. Peterson did not know what personal items of his remained in the house. Peterson testified that he had no insurance on the contents of his house.

In addition to his house, Peterson testified that he owned a Toyota Celica automobile, the purchase of which he financed by borrowing from a friend. Peterson explained that he still owed $4,000 on the vehicle but that it was inoperable. Peterson testified that besides the child-support arrearage, his debt was limited to the mortgage indebtedness on the house and the outstanding loan amount owed on the vehicle.

On cross-examination, Peterson admitted that he was able to pay child support at the time he was found to be in contempt. Peterson explained that he chose not to pay child support because, he said, he had "just cause" for not paying it. Peterson excused his failure to pay child support, stating that at the time he was found in contempt for not paying child support he was able to provide only for his basic needs. Peterson further explained that he did not pay child support because the child's ...