Alimony Is Not A Debt

"Of all injustice, that is the greatest which goes under the name of law; and of all sorts of tyranny the forcing of the letter of the law against the equity, is the most insupportable"
--L. Estrange

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For those of you who are under the impression that support is a debt and if you are unable to pay it that they can’t throw you in a debtor’s prison….think again! Read what the courts say.

Oklahoma court says constitutional bar does not extend to enforcement of support orders reduced to judgment, nonpayment of which could lead to jailing.

A state constitutional proclamation that debt shall not be the basis for imprisonment does not preclude the enforcement of unpaid support payments by contempt, even though the payments have been reduced to judgment and the contempt proceeding could result in imprisonment, the Oklahoma Supreme Court decided October 14. The court explained that while the decree (the judicial process) is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines whether the imprisonment is unlawful. It noted that other jurisdictions have held that when the claim underlying the judgment is alimony, the order may be enforced by contempt without violating constitutional restrictions on imprisonment for debt because the nature of alimony is not a debt.

The court rejected the argument that when the alimony payment is reduced to judgment its nature is changed to a judgment debt and thus it becomes a debt coming under the constitutional prohibition. It said that the underlying claim of alimony is not changed into a ''debt'' merely by being reduced to judgment, and it disapproved a 1983 state appellate court decision to the extent that the case could be read as limiting the enforcement mechanism of a support judgment to execution. The chief justice concurred in the result; three others dissented, arguing that the court should not have granted review in this case because it is addressing an issue collateral to the merits of the enforcement of the underlying support obligation. (Sommers v. Sommers, Okla SupCt, No. 87159, 10/14/97)

Digest of Opinion: Article 2, § 13 of the Oklahoma Constitution provides that ''Imprisonment for debt is prohibited, except for the non-payment of fines and penalties imposed for the violation of law.'' The question before us is whether this provision is violated when past due court-ordered alimony payments are reduced to judgment, and that judgment is enforced by a contempt proceeding that could result in imprisonment. We conclude that a contempt proceeding to satisfy an alimony award is constitutionally permissible even though the payments have been reduced to judgment.

Although judicial process, i.e., the decree, is being enforced by contempt and imprisonment, it is the nature of the claim underlying the decree that determines if that imprisonment is lawful. We have previously held that the alimony claim underlying the judgment or decree is not a ''debt'' within the meaning of that term in Art. 2 § 13. Ex parte Bighorse, 62 P.2d 487 (1936). Other jurisdictions have likewise concluded that when the claim underlying the judgment is alimony the court's order may be enforced by contempt without violating constitutional restrictions on imprisonment for debt, because the nature of alimony is not a debt. (Ex parte Hall, 854 S.W.2d 656, 19 FLR 1314 (Texas SupCt 1993); Fishman v. Fishman, 656 So.2d 1250, 21 FLR 1190 (Fla SupCt 1995); Missouri ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo SupCt 1976); Dozier v. Dozier, 850 P.2d 789 (Kan SupCt 1993); Middleton v. Middleton, 620 A.2d 1363, 19 FLR 1248 (Md CtApp 1993); Ex parte Thompson, 210 So.2d 808 (Ala SupCt 1968).)

Pursuant to this type of analysis courts look not to the form the judicial process takes, but the nature of the claim underlying that process. In South Carolina v. English, 85 S.E. 721 (SC SupCt 1915), a party argued that marriage was a contract, support was a term of that contract, a breach thereof created a debt, and that debts were not subject to enforcement by contempt. The court disagreed, and explained that the duty of support also arose by statute, that society had a direct interest in the continued performance of the support obligation, and that the husband's failure to pay was a breach of that public duty and not a mere debt owed to the wife. This language is similar to ours in Commons v. Bragg, 80 P.2d 287 (1938). See also Middleton. In addition to defining ''debt'' in such a way that does not include the alimony obligation, some courts have said that the contempt arises from a willful failure to obey the order of the court and pay the alimony, as opposed to imprisonment for debt. See Ensley v. Ensley, 238 S.E.2d 920 (Ga SupCt 1977).

The argument made here is that when the alimony decree-required payment is reduced to a judgment its nature is changed to a ''judgment debt'' and thus a debt for the purpose of Art. 2 § 13. In Doak v. Doak, 104 P.2d 563 (1940), we explained that our district courts possess the power to issue execution to collect money adjudged to be due regardless of whether the action is classified as equitable or legal. In other words, a judgment in a divorce directing immediate payment of money may be enforced by either contempt proceedings or execution. Similar analysis was used in Lipton v. Lipton, 86 S.E.2d 299 (Ga SupCt 1955), and Swanson v. Graham, 179 P.2d 288 (Wash SupCt 1947).

The typical Article 2 § 13 analysis requires examining the underlying claim and not the form of the action or process. In other words, the underlying claim of alimony is not changed into an Art. 2 § 13 ''debt'' merely by enforcing the alimony claim via a judgment and execution as contrasted with a decree and contempt. Generally, even when familial support obligations have been reduced to a judgment they have not been considered as debts within the meaning of constitutional prohibitions against imprisonment for debt, see Pettit v. Pettit, 626 N.E.2d 444 (Ind SupCt 1993) (explaining why child support duty should be enforceable by contempt, even if reduced to a money judgment). See also Gibson v. Bennett, 561 So.2d 565, 16 FLR 1353 (Fla SupCt 1990).

In a similar opinion a Texas court explained that contempt was permissible because a support obligation was not a debt, and that the contempt arose from a willful failure to obey a court order. Ex parte Wilbanks, 722 S.W.2d 221 (CtApp 1986). The Arkansas Supreme Court reached a like result in Gould v. Gould, 823 S.W.2d 890 (1992), where it expressly overruled its former opinion in Nooner v. Nooner, 645 S.W.2d 671 (1983).

While it is true that these opinions from Indiana, Florida, Texas, and Arkansas speak to the child support obligation, dicta therein include spousal support obligations, and the concept that a judgment for arrearage is not a debt for the purpose of constitutional prohibitions against imprisonment for debt. These opinions thus demonstrate the general proposition that reducing a support obligation to judgment does not prohibit contempt proceedings based upon a failure to pay the obligation.

One published opinion of our Court of Civil Appeals does come close to supporting the obligor's argument in this case, see League v. League, 735 P.2d 583 (1983). That opinion was released for publication by that court and has no precedential effect. Okla. Sup.Ct. R. 1.200. Judgment was rendered on the amount of child support arrearage, and the trial court later determined that the father had not paid the judgment and was guilty of indirect contempt. The appellate court determined that judgments for debt may not be enforced via contempt proceedings. The court concluded that when the arrearage was reduced to judgment ''the contempt finding became inoperative and the mother's enforcement remedies were narrowed to those relating to enforcement of the judgment.'' Id. at 585. The appellate court claimed to rely on Wade v. Wade, 570 P.2d 337, 4 FLR 2013 (Okla SupCt 1977). Wade, however, did not limit the enforcement mechanism of a support judgment to that of executions, and League, to the extent that it holds otherwise, is hereby disapproved.

In sum, alimony in the nature of support may be enforced via a court's contempt powers after the alimony payments become due, even after support arrearages are reduced to judgment. For the purposes of Art. 2 § 13 we view a contempt proceeding for willful failure to pay the judgment of arrearage as one for willful disobedience of the underlying support order. The Constitution is not offended. -- Summers, J.

Kauger, C.J., Concurs in result.

Dissent: I would deny the petition for certiorari because it tenders for decision a question collateral to the merits of the obligation sought to be enforced in the proceedings below. -- Simms, Hargrave, Opala, JJ.

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