Generally, an action for contempt may be defended against by alleging that the failure to abide by the court’s order was not willful. Normally this allegation that the failure to pay was not willful comes in the form of the defendant showing that he or she does not have the ability to comply with the court’s order. Listed below are several defenses to contempt actions, including the inability to pay:
- Inability to pay. If the obligated party is not able to pay or is not otherwise able to comply with the court’s order, he or she will be not guilty of contempt. See Brown v. Brown, 269 Ga. 724, 725-26 (1998) (citing Brown v. Brown, 237 Ga. 122 (1976) (overruled on other grounds); Ensley v. Ensley, 239 Ga. 860, 864 (1977)).
- Void judgment and decree. The party charged with contempt may defend against the contempt action by claiming that the underlying court order is void. A court’s order may be void if the court that entered the initial order lacked the proper jurisdiction or venue to hear the case. See Easterling v. Easterling, 231 Ga. 90 (1973).
- Reliance upon an agreement. Although a private agreement between the parties is not generally legally binding unless that agreement is incorporated by the court into the final decree or a modification of the original decree, if one party relies in good faith on such an agreement, he or she may be excused from a contempt action based on failure to comply with a court order. Stanton v. Stanton, 223 Ga. 664 (1967).
- Vagueness. If the terms of the initial order or decree are too vague to be enforceable, a disobedient party may not be charged with contempt based on the vague order. See Buckley v. Buckley, 239 Ga. 433 (1977).
Although the party charged with contempt may assert these defenses, these assertions may not necessarily be successful. Even if the party charged with contempt is found not guilty of contempt, he or she is still liable for making any past due payments or correcting any non-compliant action since a finding that a party is not in contempt may only show that the failure to pay or otherwise comply with the court’s order was not willful. See Crist v. Crist, 243 Ga. 796.