When a defendant fails to appear at a payment hearing or a compliance review hearing or the court receives information from the plaintiff that the defendant has not complied with a payment order, the court should take immediate steps to bring the defendant before the court.
Commentary
Should a party who has the ability to pay fail to satisfy a payment order, the principal tool available to the court is contempt proceedings. In all instances, once an order for payment has been made, the defendant should be informed that failure to make payment may result in the defendant being held in contempt of court for failure to comply, and, that upon a finding of contempt, he or she may be fined or imprisoned. No contempt proceedings should be commenced within the ten day appeal period.
If the defendant fails to appear at a scheduled payment hearing, then the court may issue a capias for the defendant’s arrest. If the court is satisfied that the defendant received the notice of payment hearing in the mail, the court has authority to order the capias if the defendant fails to appear; more formal notice, including in-hand service, is not required. In certain circumstances, the court may schedule a show cause hearing in lieu of issuing a capias. This procedure should only be utilized if and when the court, after appropriate inquiry, is uncertain as to whether the defendant may be in contempt of court and therefore arrest would be inappropriate or where the court believes there may be deficiencies in the notice to the defendant. Service of a notice to show cause must comply with Uniform Small Claims Rule 9.
Since a sheriff has no means of determining who is an officer of a corporation and thus may be liable for arresting the wrong person, a capias issued against a corporation or trust should state the name of the specific officer, trustee, or agent against whom the payment order was made and whom the law treats as the contemnor. (See G.L. c. 224, ss. 15,16, and Standard 7:02.) In such situations, the contemnor should be named in the capias in his representative capacity - e.g. "Jane H. Jones, as President of ABC, Inc."
Once the court has ordered a capias, the clerk-magistrate's office should issue it immediately. The small claims form of capias should expire in all courts after one year. This period of time should be sufficient for the sheriff or constable to bring the defendant before the court. Historically, shorter periods of time have proven insufficient and have required additional pleadings and court appearances to obtain a new capias. This one year period should eliminate additional court appearances and delays in bringing the defendants before the court.
If a plaintiff presents the court with ex parte evidence that the defendant has not complied with a payment order, the court should schedule a compliance hearing with written notice to the defendant, or, if the noncompliance appears willful, the court may schedule at the plaintiff's request a show cause hearing.