Moss v. Superior Court (Ortiz)

• Court: California Supreme Court
• Writing for the Court: BAXTER; GEORGE; KENNARD
• Citation: Moss v. Superior Court (Ortiz), 71 Cal.Rptr.2d 215, 17 Cal.4th 396 (Cal. 1998)
• Decision Date: 02 February 1998
• Docket Number: No. S057081,S057081
• Parties: , 950 P.2d 59, 98 Cal. Daily Op. Serv. 852, 98 Daily Journal D.A.R. 1141 Brent N. MOSS, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; Tamara S. ORTIZ, Real Party in Interest.

Page 215

71 Cal.Rptr.2d 215

17 Cal.4th 396, 950 P.2d 59, 98 Cal. Daily Op. Serv. 852,

98 Daily Journal D.A.R. 1141

Brent N. MOSS, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent Tamara S. ORTIZ, Real Party in Interest.

No. S057081.

Supreme Court of California.

Feb. 2, 1998.

Rehearing Denied March 25, 1998.

Alan C. Oberstein and Margaret J. Spencer, Public Defenders, Floyd Zagorsky, Chief Assistant Public Defender, Cheryl Thompson and Taylor L. Huff, Deputy Public Defenders, for Petitioner.

No appearance for Respondent.

Grover Trask, District Attorney, James P. Fullmer and Glen O. Brandel, Deputy District Attorneys, and Michael H. Clepper for Real Party in Interest.

Phillip J. Cline, District Attorney (Tulare) and John S. Higgins, Jr., Deputy District Attorney, as Amici Curiae on behalf of Real Party in Interest.

BAXTER, Justice.

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, 50 P. 1071 (Todd ), which was recognized as binding precedent in In re Jennings (1982) 133 Cal.App.3d 373, 184 Cal.Rptr. 53 (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, ¹ 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 $5,210 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 present when the support order was made and that he had not paid any support at all since July 1, 1994.

Brent's counsel assumed that Tamara bore the burden of proof on ability to pay support. On cross-examination Tamara testified that Brent did not have a car and at times had no food in his house. She was not aware of him having a job in the past four years, and did not know if he had any money or any ability to pay.

Betty Lou Moss, Brent's mother, testified that she provided Brent with a home. She paid the utilities expenses most times, but on other times he did so. He worked at odd jobs, and she did not know how much he earned from them. Brent often ate at her home. She did not know if he purchased food on his own. When the children were with him, they slept at his house, but he brought them to Betty Moss's home to eat. Betty Moss did not know if Brent ever fed them at his house. She did not remember how long it had been since Brent had a job. He did not discuss jobs with her. He did odd jobs like lawn mowing once in a while, but she did not know how much he earned. When she asked him about getting a job he said he was trying. He did not tell her what he was trying, however.

No other evidence was presented.

Counsel for Brent did not dispute the existence of a valid order for support, his client's knowledge of that order, and possible " willfulness," but argued that there had been no evidence of ability to comply with the support order. He also argued that in a contempt proceeding to enforce a child support order, the citee need only raise the question of ability to comply, at which point the party seeking the contempt sanction had the burden of proving ability to comply beyond a reasonable doubt. In his view, inability to comply had been adequately raised by the evidence and compelling Brent to work under threat of punishment would constitute involuntary servitude.

Tamara's counsel argued that Brent had the burden of proving inability to comply with the order as an affirmative defense and that ability to comply did not require ability to pay the full amount of support ordered.

The court agreed that the burden of proving inability to comply lay with Brent and observed that there had been no evidence whatsoever that Brent was not able to work. The court found that Brent did have the ability to pay something in child support, as the evidence permitted an inference that he was receiving money from some source other than his mother. In partial explanation of that conclusion, the court stated that Brent was well dressed and had to be doing something to buy his own clothes and feed himself when he did not eat at his mother's home. The court also stated that Brent was "a person who could get a job flipping hamburgers at MacDonald's.... I don't know why he couldn't get a job at minimum wage. He's, in my mind, chosen not to." Brent's attorney then conceded that Brent had the ability to work. When asked later if there was a finding of ability to work, however, the court said only that Brent had "the ability to get money. Now, whether you want to say it's the ability to work, which there is no evidence that he can't, or the ability to get money from his mother, which he apparently freely does as he needs to ... I am left with the inference that he has money from another source." The court also expressed the view that permitting a parent who had the ability to work and support the parent's children, but failed to do so would make a "mockery" of the contempt power.

The court found Brent guilty of 24 counts of contempt, ² but delayed imposition of sentence to permit Brent to seek appellate review. The only factual finding set forth in the minute order of November 7, 1995, was that "Respondent has the ability to pay the court ordered support."

After this petition for a writ of mandate was filed, the Court of Appeal noted that no sentence had yet been imposed and held the petition in abeyance pending that action. On March 5, 1996, the superior court imposed a sentence of five days in jail for each of six counts of contempt, and ordered Brent to perform ten hours of community servitude for each of the six counts. ³ Execution of sentence was stayed to permit Brent to purge himself of contempt by making specified payments, and he was placed on three years' informal probation. At that point the Court of Appeal issued its order to show cause in this mandate proceeding.

Brent's petition for a writ of mandate sought to set aside the contempt judgment on the ground that, although he raised the issue of inability to pay, Tamara presented no evidence that he had any resources with which to pay child support and therefore had the ability to comply with the order. Relying on Todd, supra, 119 Cal. 57, 50 P. 1071, Jennings, supra, 133 Cal.App.3d 373, 184 Cal.Rptr. 53, and In re Brown (1955) 136 Cal.App.2d 40, 288 P.2d 27 (Brown ), he also claimed that, while the amount of support fixed by a child support order may be based on ability to earn, a finding of contempt may not be based on ability to earn. The Court of Appeal set aside the contempt judgment, holding that the evidence was not sufficient to prove that Brent had the ability to pay, and because Todd was controlling (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), the Court of Appeal reluctantly concluded that h...