Moss v. Superior Court

• Citation: 49 Cal.App.4th 871,56 Cal.Rptr.2d 864
• Decision Date: 25 September 1996
• Docket Number: No. E017504,E017504
• Court: California Court of Appeals
• Parties: Previously published at 49 Cal.App.4th 871 49 Cal.App.4th 871, 96 Cal. Daily Op. Serv. 7207, 96 Daily Journal D.A.R. 11,767 Brent N. MOSS, Petitioner, v. SUPERIOR COURT for the County of Riverside, Respondent; Tamara S. ORTIZ, Real Party in Interest.

Page 864

56 Cal.Rptr.2d 864

Previously published at 49 Cal.App.4th 871

49 Cal.App.4th 871, 96 Cal. Daily Op. Serv. 7207,

96 Daily Journal D.A.R. 11,767

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

No. E017504.

Court of Appeal, Fourth District, Division 2, California.

Sept. 25, 1996.

Review Granted Dec. 18, 1996.

Margaret J. Spencer, Acting Public Defender, and Cheryl Thompson, Deputy Public Defender, for Petitioner.

No Appearance for Respondent.

Michael H. Clepper, Riverside, for Real Party in Interest.

HOLLENHORST, Acting Presiding Justice.

In this matter petitioner Brent N. Moss challenges an order of the superior court finding him in contempt for his failure to make court-ordered child support payments, and imposing jail time, a community service obligation, and a term of probation. We find that the order was not supported by substantial evidence, and accordingly annul it.

FACTS OF THE CASE

Petitioner Moss is the respondent in proceedings below which began with the dissolution of the marriage between Moss and his wife (as she was then), now known as Tamara Ortiz. By a modification of the judgment effective November 1, 1994, he was ordered to pay $192.50 per month for the support of each of two children of the marriage.

On June 27, 1995, Ms. Ortiz filed an order to show cause re contempt in which she asserted that no payments had been made since prior to July 1, 1994, and that Moss was then in arrears to the tune of some $5210.

At a hearing held on November 7, 1995, Moss did not dispute the validity of the order, his knowledge of the order, or nonpayment, and he did not testify. Ms. Ortiz testified that to the best of her knowledge, he had not had a job in four years.

Moss' mother, called by Ms. Ortiz, testified that she gave Moss "funds" and provided him with a home. Most of the time, she also paid utility bills and Moss ate "a lot," or "most of the time" at her home. Moss also frequently brought his children to eat at his mother's home when they visited. Mrs. Moss also testified that Moss does not drink alcoholic beverages. She indicated that he did occasional odd jobs such as mowing lawns, although she provided neither dates nor details. On cross-examination by Moss, she testified that she never actually gave him cash.

At that time, the court pointed out that there was no evidence that Moss' mother bought his clothes, and that he apparently had money to buy food when he was not eating at his mother's house. It saw no reason why Moss could not obtain some sort of employment and pay some sum in support of the children. It then found that he had the ability to pay "something" on the order and held Moss in contempt.

Sentencing, however, was put off so that Moss could seek a writ, which he promptly did. After requesting a preliminary response from respondents, we realized that no order of imprisonment had yet been made, and held the writ petition in abeyance for the time being. On March 5, 1996, the court imposed a sentence of five days in jail for each of six counts of contempt dating to 1995, and further ordered him to perform ten hours of community service for each of six 1994 counts. Sentence was stayed until April 1 to permit Moss to purge himself by specified payments; he was also placed on three years informal probation. We reactivated the file and issued an order to show cause. (See In re Romero (1994) 8 Cal.4th 728, 738, 35 Cal.Rptr.2d 270, 883 P.2d 388.)

DISCUSSION

I.

Most of Ms. Ortiz' response is devoted to the argument that Moss' eventual sentence established the proceedings as civil rather than criminal. It is true that in Hicks v. Feiock (1988) 485 U.S. 624, 638-640, 108 S.Ct. 1423, 1432-1434, 99 L.Ed.2d 721, the court took the position that if a contemnor, by the order of contempt, can purge the contempt by performing an act within his own control, then the matter is essentially civil and constitutional due process concerns do not apply. However, in In re Feiock (1989) 215 Cal.App.3d 141, 145, 263 Cal.Rptr. 437, the court held that under the United States Supreme Court's holding, a contempt sentence which includes a probationary period which cannot be eliminated by the contemnor's compliance is a "penalty" for constitutional purposes. (See also Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1241-1242 at fn. 8, 265 Cal.Rptr. 144, 783 P.2d 731, similarly construing Hicks v. Feiock.) As Moss correctly notes, that is the case here.

In part, the discussion is academic. The primary issue here is not whether or not Moss received due process, but whether substantial evidence supports the order. ¹ However, the distinction does have significance in that findings in a criminal contempt must be made under the "beyond a reasonable doubt" standard. (Hicks v. Feiock, supra, 485 U.S. at p. 632, fn. 5, 108 S.Ct. at p. 1430, fn. 5; Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256, 265 Cal.Rptr. 144, 783 P.2d 731.)

II.

A.

In reviewing an adjudication of contempt," 'the sole question before us [the appellate court] is one of jurisdiction of the trial court to render the judgment under review, and in such a case the review of the evidence is limited to determining whether there was any substantial evidence to sustain the jurisdiction of the trial court.' [Citations.] More recently we said that 'the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order. The power to weigh the evidence rests with the trial court.' [Citations.]" (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201.) Buckley remains the standard. (Board of Supervisors v. Superior Court (1995) 33 Cal.App.4th 1724, 1736, 39 Cal.Rptr.2d 906.) However, later cases also caution that " 'the evidence, the findings, and the judgment are all to be strictly construed in favor of the accused [citation], and no intendments or presumptions can be indulged in aid of their sufficiency. [Citation]. If the record of the proceedings, reviewed in the light of the foregoing rules, fails to show affirmatively upon its face the existence of all the necessary facts upon which jurisdiction depended, the order must be annulled.' [Citation omitted.]" (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256, 265 Cal.Rptr. 144, 783 P.2d 731; see also In re Cassil (1995) 37 Cal.App.4th 1081, 1087, 44 Cal.Rptr.2d 267.)

Code of Civil Procedure section 1209.5, which governs contempt proceedings involving violation of child support orders, provides that "proof that the order was made, filed, and served on the parent or proof that the parent was present in court at the time the order was pronounced and proof that the parent did not comply with the order is prima facie evidence of a contempt of court." In other contempt situations, the charging party must affirmatively prove ability to comply. (Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256, 265 Cal.Rptr. 144, 783 P.2d 731; Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784, 242 Cal.Rptr. 148.) However, with respect to nonpayment of court-ordered child support, "ability to comply" becomes a defense to be raised as "inability to pay." (In re Feiock, supra, 215 Cal.App.3d at pp. 146-148, 263 Cal.Rptr. 437.)

However, "[m]aking inability to pay a matter of defense does not place too harsh a burden on the contemner. [ ² Since inability to pay goes to the heart of the contempt, the contemner's task is merely to raise the issue of his ability to pay. The petitioner's burden then remains to prove the contempt beyond a reasonable doubt [in cases of criminal contempt]." (In re Feiock at p. 148, 263 Cal.Rptr. 437; see also People v. Dilday (1993) 20 Cal.App.4th Supp. 1, 3-4, 25 Cal.Rptr.2d 386, applying In re Feiock in the context of a criminal contempt charged under Penal Code section 166, subdivision (a)(4) (as it is now numbered), but based on failure to pay child support.) In this case, Moss adequately put the question in issue by presenting evidence that he was virtually unemployed, lived in a home provided by his mother, and took many of his meals with her. There is a strong and reasonable inference at least that a parent would not provide such assistance to a child who had money to pay his own expenses.

B.

First, we turn to the predicate issue of Moss' ability to pay as a question of his actual possession of adequate funds. The trial court relied on the facts that Moss appeared to be neatly dressed in court and therefore could afford clothing, and that he was apparently able to feed himself when his mother was not supplying his meals.

The usual standard of review applied to a challenge of the sufficiency of evidence is familiar. " 'To determine [the validity of a claim of insufficient] evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. [Citations.]' (People v. Johnson, supra, 6 Cal.4th 1, 38, 23 Cal.Rptr.2d 593, 859 P.2d 673.) If we determine that a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781, 2788-2789] ), as is the due process clause of article I, section 15 of the California Constitution. (People v. Berryman, supra, 6 Cal.4th [1048] at p. 1083, 25 Cal.Rptr.2d 867, 864 P.2d 40)." (People v. Memro (1995) 11 Cal.4th 786, 861, 47...