Contempt Sanctions For Child Support

The case of Moss v. Superior Court, recently decided by the California Supreme Court, involved Brent Moss, who had been ordered to pay child support after his dissolution of marriage, but did not make payments as ordered. Brent was called to Court to show cause why he should not be held in contempt for willful disobedience of the support order. If a person has the ability to comply with a valid court order and does not, they can be held in contempt. The party found in contempt faces a possible jail sentence of up to five (5) days for each willful violation.

Evidence at Brent’s hearing showed that Brent had not paid any support since July 1, 1994. Brent’s counsel argued that the complaining party failed to prove Brent’s ability to comply. The Court, however, ruled that Brent had the burden of proving inability to comply. Brent’s attorney based his defense on Brent’s inability to pay: Brent had not had a job, beyond odd jobs, like mowing lawns once in a while, for the past four (4) years. Brent had no car, and, at times, he had no food in his house. Brent’s mother provided him with a home and paid his utilities most of the time. Brent ate at his mother’s home. When the children were with him, they slept at Brent’s house, but were brought to Brent’s mother’s house to eat.

The Court found for the complaining party, held Brent in contempt, and sentenced him to jail. The imposition of the sentence was stayed pending Brent’s appeal. The Appellate Court set aside the contempt judgment finding there was not sufficient evidence to prove Brent’s ability to pay. The Appellate Court invited the Supreme Court to reconsider or clarify the law in the area. The Supreme Court agreed to hear the case.

Brent’s counsel argued that it was not constitutionally permissible to use a contempt sanction against his client. Doing so would violate the constitutional prohibitions against slavery and involuntary servitude or the prohibition of imprisonment for a debt. The Supreme Court in an unanimous decision and held that:

“…there is no constitutional impediment to the use of the contempt power to punish a parent who otherwise lacking monetary ability to pay child support, willfully fails and refuses to seek and accept available employment commensurate with the parents’ skills and abilities.”

With respect to involuntary servitude, the Thirteenth Amendment to the Constitution prohibits slavery or involuntary servitude except as punishment for a crime. The Court stated:

“A parent’s obligation to support a minor child is a social obligation that is no less important then compulsory military service, road building, jury service, or other constitutionally permissible enforced labor.”

“When, as here, however, the person claiming involuntary servitude is simply expected to seek and accept employment if available, and is free to choose the type of employment and the employer, and is also free to resign that employment if the conditions are unsatisfactory or to accept other employment, none of the aspects of ‘involuntary servitude’ which would invoke the need to apply a contextual approach to the Thirteenth Amendment analysis is present. There is no ‘servitude’ since the worker is not bound to any particular employer and has no restrictions on his freedom other than the need to comply with a lawful order to support a child. Working to earn money to support a child is not involuntary servitude anymore than working in order to pay taxes. Failure to do either may subject one to civil and criminal penalties, but that compulsion or incentive to labor does not create a condition of involuntary servitude.”

The California Constitution prohibits imprisonment in a civil action for a debt. This prohibition, however, does not apply to imprisonment for a crime. The legislature has made criminal a party’s failure to pay certain obligations. The Supreme Court previously considered a provision of the Labor Code, which made it a crime for an employer who had the ability to pay wages to employees to willfully refuse to do so. The Court noted that the constitutional prohibition against imprisonment applied to only civil actions, but the Court would examine any statute which makes non-payment of an obligation a crime in light of the constitutional provision to ensure that the constitutional prohibition of imprisonment for debt is not circumvented by mere form.

The Court, in a prior case considering family support, stated the obligation to pay family support is not a debt covered by the Constitutional guarantee against imprisonment for debt, and the same applies to the obligation to pay child support.

“Children are dependent on their parents for the necessities of life and it is essential to the public welfare that parents provide support with which to care for their needs…a parent who knows that support is due, has the ability to earn money to pay that support, and still willfully refuses to seek and accept available employment to enable the parent to meet the support obligation acts against fundamental societal norms and fair dealing, and necessarily intentionally does an act which prejudices the rights of his children. This conduct would fall within the fraud exception to the constitutional prohibition of imprisonment for debt.”

The Court then considered whose burden it is to prove ability or inability. Brent’s initial argument was that he needed only to raise a question of ability to comply in order to shift the burden of proof, beyond a reasonable doubt, that he had the present financial ability to comply with the Order, to the complaining party. The Court, however, ruled that:

“Ability to comply with the support order is not an element of the contempt which must be proven beyond a reasonable doubt by the Petitioner. It is an affirmative defense which must be proven by preponderance of the evidence by the alleged contemnor.”

Brent was, however, able to avoid contempt in this case because of the change in the law this case represents.

The Court clearly states the rule now that:

“…the elements of this contempt are only a valid Court order, the alleged contemnor’s knowledge of the order, and non-compliance. If the Petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no farther to prevail on the affirmation defense of inability to comply with the support order, the contemnor must prove such inability by a preponderance of the evidence.”