The Nevada Supreme Court on Thursday said judges must make a careful determination whether someone is truly indigent when they are facing jail time for not paying child support.
The opinion was made in the case of Charles Rodriguez of Las Vegas who argued he should be entitled to legal help because of the potential penalty.
He said his situation was essentially the same as a criminal defendant and therefore his constitutional rights are being violated by jailing him for contempt because he can't afford to pay his back child support.
The district judge was less than sympathetic, ruling that Rodriguez had deliberately decided not to seek employment to avoid paying child support. He refused the man's demand for a state-paid lawyer and ordered Rodriguez to serve 25 days in jail, saying he could get out any time he could post $10,000 toward his child-support debt.
The court panel of justices Bob Rose, Bill Maupin and Michael Douglas said since the case is a civil contempt situation rather than a criminal case, Rodriguez is not automatically entitled to counsel even though he faces jail time. And they agreed the district court's options are very limited since Rodriguez repeatedly failed to make child support payments.
On the other hand, the court admitted that, if he is truly indigent and can't afford the payments or a lawyer to defend him, the situation may cross the line and require he receive legal help.
The justices said they can't rule defendants in the same situation are never entitled to legal help any more than they can rule them always entitled to a court-paid lawyer.
"Because Rodriguez apparently elects not to seek employment, the state possesses a limited set of available options to compel his compliance," the opinion states.
"Without income, there is nothing to withhold, no federal income tax to intercept and establishing a lien against an individual's real or personal property is of little consequence where that party elects to have none."
"Without specific findings regarding Rodriguez's current financial status or the status of the business awarded to him in the divorce, we are concerned whether Rodriguez actually possesses the ability to secure his freedom," the opinion states.
But they said most of the problem can be resolved by directing the district court to make specific legal findings regarding Rodriguez's current financial status.
The justices ordered the Las Vegas court to bring Rodriguez back and make specific findings as to his financial status and ability to pay. They said that will enable the district court to determine whether Rodriguez is actually in civil contempt for not paying and to fairly decide what the penalty for that contempt should be.
Contact reporter Geoff Dornan at nevadaappeal@sbcglobal.net or 687-8750.
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