In re Ivey

• Citation: 85 Cal.App.4th 793,102 Cal.Rptr.2d 447
• Decision Date: 19 December 2000
• Docket Number: No. B142777.,B142777.
• Court: California Court of Appeals Court of Appeals
• Parties: In re Artis IVEY On Habeas Corpus.

102 Cal.Rptr.2d 447

85 Cal.App.4th 793

In re Artis IVEY On Habeas Corpus.

No. B142777.

Court of Appeal, Second District, Division 5.

December 19, 2000.

Leonard J. Meyberg, Jr., Los Angeles, for Petitioner.

No appearance on behalf of Respondent Superior Court.

No appearance on behalf of Real Party in Interest.

GRIGNON, Acting P.J.

In a child custody and support proceeding, a father was found to be in contempt of orders to pay the mother's pendente lite attorney and expert fees. He filed a petition for writ of habeas corpus, contending the family law court had improperly utilized mandatory presumptions, relating to the elements of knowledge and ability to pay, to find him guilty of criminal contempt. We conclude that, where ability to pay has already been determined by the family law court in making the order underlying the contempt, ability to pay is not an element of the contempt but rather inability to pay is an affirmative defense. We further conclude the instant contempt proceeding is criminal in nature, and while a mandatory presumption may not be utilized to find an individual guilty of criminal contempt, a permissive inference may be utilized. Because the family law court properly utilized a permissive inference of knowledge in determining guilt, we deny the petition for writ of habeas corpus.

FACTS AND PROCEDURAL BACKGROUND

Petitioner Artis Ivey (father) and real party in interest Shelita Washington (mother) are the parents of three children. The parties have never been married. The instant litigation concerns the custody and support of the three children. While the parties were preparing for trial, mother sought pendente lite awards of attorney and expert fees based on her needs and father's ability to pay. Father was, by his own admission, an extraordinarily high income earner. On September 10, 1997, father was ordered to pay $2,898 in attorney fees and costs, payable on November 10, 1997. Father's attorney was present in court when the family law court made the order, but father was not present. A formal order was prepared and served on father's attorney on December 4, 1997. The order was filed with the court on December 24, 1997.

On November 19, 1997, father was ordered to pay a total of $83,265 in attorney and expert fees, payable in six installments due November 19, 1997, December 19, 1997 (two installments), January 19, 1998 (two installments), and the date of trial, February 26, 1998. Father's attorney was present in court when the family law court made the order, but father was not present. A formal order was prepared and served on father's attorney on December 8, 1997. The order was filed with the court on December 24, 1997. When the trial date was continued, the February 26, 1998 installment was extended to April 17, 1998.

Father made no payments on the orders. Mother levied on father's bank account and obtained $16,920 towards payment of the orders. Father was personally served with the orders on January 8, 1999. Father still made no payments on the orders.

On October 7, 1999, mother filed an affidavit alleging seven counts of contempt of court for failure to pay the seven court-ordered attorney and expert fee installments. An order to show cause issued on the affidavit, directing father to show cause why he should not be held in criminal contempt. After being served with the order to show cause, father made five payments of $500 towards payment of the installments.

A hearing on the order to show cause was held. Mother's proffered evidence of father's bank statements was excluded for failure to comply with the foundational requirements for the business records exception to the hearsay rule. Father presented no evidence, but moved to dismiss the contempt citation on the ground of insufficiency of the evidence to support findings of knowledge and ability to pay. The family law court found notice to father's attorney was properly imputed to father and ability to pay was established by the determination of ability to pay made when the orders initially issued. The family law court denied the motion to dismiss and found father guilty of seven counts of contempt. The family law court sentenced father to 14 days in jail (two days for each count), and suspended all but three days on condition of future compliance.

Father petitioned this court for a writ of habeas corpus. We issued an order to show cause, stayed execution of the sentence pending determination of the merits of the petition, and set the matter for oral argument. No appearance was made by respondent court or real party in interest.

DISCUSSION

Ability to Pay

Father contends present ability to pay is an element of the contempt charged against him. He contends mother failed to produce any evidence of his present ability to pay and the family law court utilized an unconstitutional mandatory presumption of ability to pay based on an earlier finding of ability to pay made at the time the underlying orders were entered. We reject these contentions.

As a general rule, the elements of contempt include (1) a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order. (Anderson v. Superior Court (1998) 68 Cal.App.4th 1240, 1245, 80 Cal.Rptr.2d 891; In re Cassil (1995) 37 Cal.App.4th 1081, 1087, 44 Cal. Rptr.2d 267.) However, where the order is a family law order for payment of support or attorney fees, and the family law court has already determined the alleged contemner's ability to pay the underlying order, ability to comply with the order is not an element of the contempt. Rather, inability to pay is an affirmative defense, which must be proven by the alleged contemner. (In re McCarty (1908) 154 Cal. 534, 538, 98 P. 540.) Ability to pay becomes an element of the contempt only when the alleged contempt occurs many years after the underlying order. (Mery v. Superior Court (1937) 9 Cal.2d 379, 380-381, 70 P.2d 932.)

The rationale of such a rule is clear. "It is not necessary for a wife on the hearing of a contempt proceeding for nonpayment of alimony to prove anything more than the making of the order and disobedience of it by her husband in refusing to pay the amounts which the court found he had the ability to [pay] when it made the order. She makes a prima facie case at the hearing by producing the original order, and by proof of the refusal of her husband to make payment according to its terms. . . . The proceeding in contempt is designed to punish the delinquent husband for disobeying the order of the court and to enforce obedience to it, and at the same time an opportunity is given him to purge himself of contempt by presenting any legitimate excuse he may have, and, if his excuse is that since the making of the original order he has become unable to pay the alimony required by it, it is incumbent upon him to prove that fact. He is in the best position to show why for any reason he has not obeyed the order, and it is his duty to do so as a matter of defense. It is not necessary for the wife to allege his ability to comply with the original order. The court had originally found that he had such ability...." (In re McCarty, supra, 154 Cal. at p. 537, 98 P. 540.) The rationale supports the rule where the alleged contempt occurs soon after the underlying order was entered. (Mery v. Superior Court, supra, 9 Cal.2d p. 380, 70 P.2d 932.) The rationale does not support the rule where the alleged contempt occurs long after the underlying order was entered. (Ibid, [ongoing spousal support; contempt alleged for failure to pay amounts coming due ten years later].)

This rule has been consistently applied by the courts of this state with one significant digression. (In re Rasmussen (1922) 56 Cal.App. 368, 371, 205 P. 72; In re Risner (1945) 67 Cal.App.2d 806, 809-810, 155 P.2d 667; In re Sigesmund (1961) 193 Cal.App.2d 219, 224, 14 Cal.Rptr. 221; Sorell v. Superior Court (1967) 248 Cal. App.2d 157, 160-161, 56 Cal.Rptr. 222; Mossman v. Superior Court (1972) 22 Cal. App.3d 706, 712, 99 Cal.Rptr. 638.) The digression commenced in 1954 when the Court of Appeal stated that one of the elements of contempt of an order to pay child support was ability to comply, which was required to be alleged in the affidavit and proven by the petitioner. (Warner v. Superior Court (1954) 126 Cal.App.2d 821, 824, 273 P.2d 89.) It is notable, however, that ability to pay was not at issue in the Warner case. In response to Warner, the Legislature adopted Code of Civil Procedure section 1209.5, which expressly provided that ability to pay was not an element of contempt of an order to pay child support. (Rev. of 1955 Code Legislation (U. of Cal. Ext., 1955) p. 129.)¹ In 1986, the Court of Appeal considered Code of Civil Procedure section 1209.5 and held that ability to pay was an element of contempt of a child support order. (In re Feiock (1986) 180 Cal.App.3d 649, 653-654, 225 Cal.Rptr. 748.) The appellate court further held that Code of Civil Procedure section 1209.5 created an unconstitutional mandatory presumption of ability to pay. (Ibid.; compare Martin v. Superior Court (1971) 17 Cal.App.3d 412, 415, 95 Cal.Rptr. 110 [Code Civ. Proc., § 1209.5 is constitutional].)

The matter was taken up by the United States Supreme Court. (Hicks v. Feiock (1988) 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721.) The Supreme Court stated that whether ability to comply is an element of contempt or an affirmative defense is a matter of state law, and it was not free to overturn the state court's determination. (Id. at p. 629, 108 S.Ct. 1423; accord, Moss v. Superior Court (1998) 17 Cal.4th 396, 426, 71 Cal.Rptr.2d 215, 950 P.2d 59; compare In re Cassil, supra, 37 Cal.App.4th at p. 1088, fn. 1, 44 Cal. Rptr.2d 267.) In this case, the Supreme Court noted, the appellate court had determined ability to pay to be an element, and the California Supreme Court had denied review. The United States Supreme Court...