Lamb v. Eads

• Decision Date: 11 April 1984
• Docket Number: No. 83-382,83-382
• Parties: Donald D. LAMB, Plaintiff, v. Judge William R. EADS and Iowa District Court for Tama County, Defendants.
• Court: Iowa Supreme Court

Page 830

346 N.W.2d 830

Donald D. LAMB, Plaintiff, v. Judge William R. EADS and Iowa District Court for Tama County, Defendants.

No. 83-382.

Supreme Court of Iowa.

April 11, 1984.

Rehearing Denied May 10, 1984.

Charles L. Harrington, Appellate Defender, and Raymond E. Rogers, Asst. Appellate Defender, for plaintiff.

Thomas J. Miller, Atty. Gen., Gordon E. Allen, Sp. Asst. Atty. Gen., and Stephen C. Robinson, Asst. Atty. Gen., for defendants.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, LARSON, and CARTER, JJ.

UHLENHOPP, Justice.

In this original certiorari proceeding plaintiff Donald D. Lamb challenges the constitutionality of a district court order holding him in contempt, requiring his incarceration, and withholding mittimus on condition.

In 1976 the district court dissolved the marriage of Donald D. and Carol J. Lamb, granted Carol custody of the parties' four children, and required Donald to pay Carol child support of $300 per month through the clerk's office. Donald did not pay the support and in February 1983 was in arrears in the sum of $11,583.35.

The Child Support Recovery Unit applied to the district court for a rule requiring Donald to show cause why he should not be found in contempt for failing to pay the support. The court issued a rule for Donald to show cause. Upon a showing of Donald's indigency, the court appointed counsel to represent him.

A hearing was held on March 17, 1983, on the rule to show cause. The recovery unit introduced a certified copy of the clerk's record showing the arrearage of $11,583.35. The court offered Donald the opportunity to show why he had not paid the child support. The record then recites:

Mr. Havlik [Donald's attorney]: Your, Honor, my client advises me he does not wish to take the stand.

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The Court: Mr. Havlik, I again offer Mr. Lamb the opportunity to purge himself and give me an explanation, if he wishes.

Mr. Lamb: I feel it would be against my Fifth Amendment right to self-incriminate, Your Honor. I refuse to take the stand.

The court thereupon held, on proof of the arrearage and in the absence of an explanation, that Donald's failure to pay the support was willful and that Donald was in contempt. The court sentenced him to jail for thirty days, but allowed him to purge himself by paying $75 child support plus $25 on the arrearage, weekly, failing which mittimus should issue in the absence of a lawful explanation. Donald then initiated this certiorari proceeding challenging the court's holding, and the district court again provided him with counsel.

Donald advances four propositions in this proceeding but the first and third are interrelated and may be considered together and the second and fourth may similarly be considered simultaneously.

I. Contempt based on failure to pay child support requires that the failure be willful. Iowa Code § 598.23 (1983). Donald contends in his first and third propositions that the district court erred in placing the burden on him regarding the issue of willfulness and in finding willfulness in the absence of substantial evidence.

The general rule holds that an applicant for a contempt citation establishes a prima facie case by proving the duty which is on the contemner and the contemner's failure to perform the duty. The contemner then has the burden of showing he could not perform the duty, if he relies on that ground. Wilson v. Fenton, 312 N.W.2d 524, 527 (Iowa 1981) ("the alleged contemnor has the burden of proof on a defense of inability to comply"); Foust v. Denato, 175 N.W.2d 403, 405 (Iowa 1970) ("when the evidence clearly shows the order of court has been disobeyed, a party who seeks to purge himself of contempt by showing his inability to comply with the order of court has the burden to prove it"); 17 Am.Jur.2d Contempt § 51, at 54 (1964); 17 C.J.S. Contempt § 84(2), at 214 (1963). The principle that places the burden on the contemner to show that his default was not willful necessarily means that upon the contemner's failure to make the requisite showing the default may be found to be willful.

Donald argues that the burden of proof principle we have stated does not apply to failure to pay child support, because such a contempt proceeding is criminal in nature and the burden is wholly on the applicant. We need not get into the civil-criminal contempt dichotomy, see McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982), because courts squarely hold the stated burden of proof principle applies in alimony and child support proceedings. Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968) (nonpayment of alimony and child support--"the burden of proving inability should be on the defendant"); Hodous v. Hodous, 76 N.D. 392, 401, 36 N.W.2d 554, 559-60 (1949) (alimony and suit money--"In this case the defendant freely admitted his default. The burden was therefore upon him to establish his defense and show his inability to comply with the order."); Balaam v. Balaam, 52 Wis.2d 20, 30, 187 N.W.2d 867, 872 (1971) (temporary alimony--"In a contempt proceeding the burden of proof is on the person against whom the contempt is charged to show his conduct was not contemptuous.").

We do not find merit in Donald's first and third propositions.

II. In his second and fourth propositions, Donald asserts constitutional challenges: inferring willfulness from his failure to show he could not pay causes him to incriminate himself by his silence, and ordering him incarcerated unless he makes future payments deprives him of due process and equal protection.

Donald's self-incrimination contention is exploded by United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521, reh. denied, --- U.S. ----, 103 S.Ct. 2466, 77 L.Ed.2d 1342 (1983). Donald had the burden of proving inability to...