Child-support suit challenges jail tactic Tennessee Dad says inability to pay is no crime

By SHEILA BURKE
Staff Writer

Bryan Cottingham insists he had no intention of trying to escape the $37,000 he owed in back child support — he says he just didn't have the money to pay.

But that didn't stop a private collection agency working for the state from asking a Williamson County court to throw him in jail. Without a lawyer for much of the case, the freelance television producer and traffic reporter was sentenced to 170 days for criminal contempt of court. In 2002, he spent two days behind bars before making bail.

After years of legal wrangling, the Tennessee Supreme Court unanimously overturned the convictions, ruling that no one proved Cottingham had the money and refused to pay.

Cottingham, now 60, is pushing a federal lawsuit, hoping to collect damages and prevent the state child-support collectors from improperly using the threat of jail to pressure people who can't afford to pay.

"I never tried to get out of paying child support. I never felt like I should get out of it," he said, adding: "I can tell you that there was nothing lower in my life than when I was in that jail cell."

Company follows laws

Officials at Tennessee's Department of Human Services and the contractor involved, Policy Services Inc. of Denver, declined requests to discuss Cottingham's case, citing the pending lawsuit. But in separate statements, both noted the importance of making sure money gets to children and families who need it.

"PSI fully complies with all federal and state of Tennessee laws … ," the company said. "We employ a range of civil and criminal measures made available to us by the state to collect unpaid child support payments, including civil and criminal contempt petitions.

"It is the responsibility of the court system to protect the rights of all parties affected by a legal action, including the children who have not received the child support to which they are legally entitled," the statement continued. "In the end, an individual who owes child support will not go to jail unless it is proved beyond a reasonable doubt that he or she committed a crime."

Collection cases abound

Mike Adams, assistant commissioner for child support at the Department of Human Services, said in a statement that "for many families, receiving regular support can be the difference between self-sufficiency or dependence on others or the state."

"Unfortunately, in spite of our best efforts, far too many parents are still walking away from their responsibility to provide financial support for their children," he said. "These absent parents often leave the custodial parent and children in a difficult situation, struggling to provide for the basic necessities of life."

Officials at the department, which oversees child-support collections, said they don't track how many of the nearly 258,000 current child-support collection cases involve someone going to jail.

But one Nashville lawyer who works in family law thinks Cottingham's case offers a window into the state's complex, half-billion-dollar-a-year world of child-support collections. The system affects vast numbers of Tennesseans and collects money under threat of sanctions that can lead to financial ruin or incarceration, attorney Mike Urquhart said.

"Just because someone didn't pay their child support does not mean that they are in contempt of a court order," he said.

Income dropped 80%

During the 1990s, Cottingham paid support based on the $75,000 annual pay he earned at the time. But then his business tanked. "My income dropped about 80 percent," Cottingham said.

The payments were lowered, but he still couldn't keep up. The hole got deeper and deeper until he owed $37,000 in back child support and $36,000 in back alimony.

To put someone in jail for criminal contempt of court, the prosecution must prove that the person had the ability to pay and that nonpayment was deliberate.

PSI contracts to collect unpaid support in 11 counties, including Davidson, Williamson and Hickman. The work involves more than 35,000 cases and more than $381 million in unpaid child support, the company said.

In May of 2002, PSI filed 17 counts of criminal contempt against Cottingham. Cottingham couldn't afford a lawyer and didn't have one for much of the trial. The state Supreme Court later ruled that Cottingham should have had a lawyer appointed for what became a criminal proceeding, or asked whether he wanted to waive his right to an attorney.

Urquhart said he often sees criminal contempt petitions used in a similar manner in Metro's Juvenile Court.

"It is a standard contempt petition," he said. "They allege the same thing almost in every petition. I think that there is no accountability on the contracting agency of how they behave."

The tactics of child-support collectors statewide seem to be working. During the past five years, the amount of child support disbursed through DHS collections increased 50 percent to $478 million in 2006. That's about twice as fast as the growth in new collection cases.

Tony Gottlieb, of DAD of Tennessee, a fathers-rights organization, said he frequently hears claims that criminal contempt orders are being used improperly to collect child support.

"This is not an unusual situation you're talking about," he said. "It happens all the time."
http://www.tennessean.com

 

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