DiMarco v. DiMarco

Petitioner Brian DiMarco sought a writ of certiorari to review the court of appeals' decision that affirmed, as modified, a family court's contempt order against him.  Petitioner was subject to a court order to make monthly child support payments to Cheryl DiMarco (Mother).  According to Petitioner, he had made child support payments for over ten years before Mother filed for an increase in 2006.  The family court instead decreased the support order and ordered the payments be made through the court beginning on April 1, 2008.  Petitioner asserts he timely attempted to make the first payment to the court, but the court lacked record of the order and could not accept the payment. In May 2008, the clerk of the family court filed a Rule to Show Cause because Petitioner was behind on his child support payments. The hearing was scheduled for June 25, 2008. On June 23, 2008, Petitioner paid the arrearage, bringing his child support account to a zero balance. On the morning of June 25, Petitioner did not appear on time for the Rule to Show Cause hearing. The judge issued a warrant for Petitioner's arrest.  No testimony was taken on whether or not Petitioner had failed to pay child support.  Shortly thereafter, Petitioner arrived at the courthouse.  During the hearing, everyone who spoke noted Petitioner did not owe any outstanding child support at that time. During his argument, Mother's attorney stated, "I think the court needs to very much impress upon him taking the law into his own hands and not showing up, not being here on time it's just, just it's driving everyone nuts." From the bench the judge held Petitioner in civil contempt, suspended confinement and a levied a fine. Upon review, the Supreme Court reversed the court of appeals because the sanction ordered by the family court violated Petitioner's rights under the Sixth Amendment of the United States Constitution. The court of appeals said "the family court's contempt sanction has elements of both civil and criminal contempt."  The civil element of the sanction, the court found, was that the incarceration would not be imposed unless Petitioner failed to pay the $250.00 to the court.  The criminal element was that if Petitioner failed to pay the $250.00, he would be incarcerated for a definite period of time.  To remedy the family court's unclear sanction, the court of appeals modified the order and held Petitioner must pay the $250.00 in court costs, and if he failed to do so by the deadline established, then he would be incarcerated for twelve months.  In doing so, the court of appeals crafted a sanction that violated Petitioner's Sixth Amendment rights. View "DiMarco v. DiMarco" on Justia Law