Judges reverse ‘inconceivable’ 150-week sentence for civil contempt

A trial court imposed an “inconceivable” sentence for civil contempt on a mother who was in arrears on child support payments to the guardian of two of her three children, their grandmother, the Indiana Court of Appeals ruled Thursday.

Carroll Circuit Judge Benjamin A. Diener sentenced Brandis McCollum to serve the nearly three-year sentence on work release, though McCollum had not been criminally charged. McCollum owed an arrearage of $15,296 in child support, and at a civil contempt hearing in February, she acknowledged she had not made a child support payment for a year. She also told the court she had just started a full-time job paying $7.50 an hour, and had been promised another part-time job, according to the record.

Diener determined at the end of the hearing that McCollum was 150 weeks in arrears on child support, so he sentenced her to serve that time on work release. His order said she could end the sentence by paying half of the total child support she owed.
The COA Thursday affirmed the contempt finding, but the panel rejected in strong terms the sentence that it noted was a greater deprivation of liberty than the maximum 2½ years McCollum would have faced had she been tried and convicted of Level 6 felony non-support of a dependent child.

“We find it inconceivable that a court could properly sanction a defendant in a civil contempt proceeding, where the defendant has lesser constitutional protections, with a longer prison sentence than the maximum they could receive if charged criminally with all of a criminal proceeding’s constitutional protections. As Mother’s sanction here, assuming she is not able to purge her contempt, amounts to three years, it is greater than the maximum sentence the trial court could have imposed if she had been charged criminally. We cannot in good faith find such a sanction appropriate,” Judge Rudolph R. Pyle wrote for the panel.

The panel also found the amount McCollum was ordered to pay to purge her support obligation and end her imprisonment “was so excessive that it was unobtainable and, therefore, punitive rather than coercive.”  

“It is axiomatic that no amount of imprisonment can coerce a defendant into completing an action that is not practically possible to complete,” Pyle wrote. “Accordingly, we conclude that the trial court’s conditions for Mother’s imprisonment were punitive in nature rather than coercive and, accordingly, not proper for a civil contempt sanction. As a result, we reverse the trial court’s sanction and remand with instructions for the trial court to impose a sanction that is coercive in nature.”

The opinion noted another COA panel found a 90-day sentence with purge order requiring 10 percent of arrears was not punitive, but rather coercive.

The case is Brandis McCollum (formerly Brandis Adams) v. Indiana Family and Social Services Administration, 08A04-1703-GU-614.

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