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Moss v. Superior Court of Riverside County2/2/1998
May a parent whose inability to pay court-ordered child support results from a willful failure to seek and obtain employment be adJudged in contempt of court and punished for violation of the order? Concluding that it was bound by this court's decision a century ago in Ex parte Todd (1897) 119 Cal. 57 (Todd), which was recognized as binding precedent in In re Jennings (1982) 133 Cal.App.3d 373 (Jennings), the Court of Appeal reluctantly held that to impose a contempt sanction in those circumstances is beyond the power of the court. It therefore annulled the judgment of contempt in issue in this proceeding. Although not expressly articulated in Todd, which, like Jennings, involved spousal support, the apparent basis for the Todd result was either an assumption that employment sought under even an indirect threat of imprisonment for violation of the support order constituted involuntary servitude or a belief that imposition of a contempt or criminal sanction for failure to pay support constituted imprisonment for debt.
We conclude that there is no constitutional impediment to imposition of contempt sanctions on a parent for violation of a judicial child support order when the parent's financial inability to comply with the order is the result of the parent's willful failure to seek and accept available employment that is commensurate with his or her skills and ability. We shall therefore disapprove Todd insofar as it might be read to apply to child support orders. We also address the burden of proof in these contempt proceedings and conclude that inability to comply with a child support order is an affirmative defense. The alleged contemner must prove inability to comply by a preponderance of the evidence which was not done here.
We shall affirm the judgment of the Court of Appeal however. We must do so because, in light of the past understanding of Todd, our holding that a willfully unemployed, nonsupporting parent is subject to contempt sanctions if the parent fails to comply with a child support order might be deemed an unanticipated change in the law, and Tamara Ortiz, the custodial parent, did not carry her burden of proof under the existing law by showing that Brent Moss, the alleged contemner, had the actual financial ability to comply with the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
The "Declaration for Contempt" in this matter, executed by Tamara S. Ortiz on June 22, 1995, alleged that a judgment of dissolution filed March 17, 1992, ordered Brent N. Moss to pay $241.50 each, or a total of $483 a month support for the two children of the marriage, one- half due on the first and one-half due on the fifteenth day of each month, commencing on January 15, 1992. The order was modified on November 1, 1994, after which $385 was to be paid monthly, with semimonthly payments of $192.50. The declaration alleged that Brent had knowledge of the order and was able to comply with each order when it was disobeyed. No payments were made from July 1, 1994, through June 15, 1995. A total of $5,012 was due and unpaid.
Brent was unemployed when the support order was made. The amount to be paid was based on his ability to earn $1,671 gross income per month.
The declaration alleged 24 contempt counts and the court treated each of the 24 dates on which a payment had not been made as a separate count. The superior court issued an order to show cause on June 17, 1995, directing Brent to appear and show cause why he should not be found guilty of contempt for willful disobedience of the support order.
At the November 7, 1995, hearing on the order to show cause, Tamara testified that she and Brent, her then husband, were prese
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