State ex rel. Mikkelsen v. Hill

JurisdictionOregon
PartiesSTATE ex rel. Cathie L. MIKKELSEN, Respondent, v. Cody Allen HILL, Appellant. 89-11-9705-E; CA A66027.
Citation813 P.2d 1130,108 Or.App. 135
CourtOregon Court of Appeals
Decision Date03 July 1991

George W. Kelly, Eugene, argued the cause and filed the brief for appellant.

Yuanxing Chen, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

ROSSMAN, Judge.

Defendant appeals a judgment finding him in contempt for failure to pay child support. We reverse.

In 1988, defendant was divorced and ordered to pay $150 a month child support. He made no payments. The district attorney issued a citation for him to show cause why he should not be held in contempt. The court treated the matter as a criminal contempt, informing defendant that he faced jail as a result of not having paid his support obligations. Counsel was appointed.

Neither defendant nor the state called witnesses or presented evidence. Nevertheless, the trial court believed that it had enough before it to enable it to make a ruling. It held that the state had made a

"prima facie showing and without some showing of an inability to pay on the part of the Defendant, has met its burden of persuasion. The burden of going forward does indeed shift to the Defendant in view of the State's prima facie case which appears within the file itself."

The court found that defendant had "purposely and willfully failed" to comply with the support order and imposed a suspended sentence and a year of probation.

Defendant argues that the trial court shifted the burden of proof from the state to him, in violation of the Due Process Clause. He relies on Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), in which the defendant had been found in criminal contempt for nonsupport under a California statute that provided that evidence that a parent had knowledge of the order and had not complied with it was prima facie proof of contempt. The California appellate court concluded that the statute violated the Due Process Clause, because it purported

"to impose a mandatory presumption compelling a conclusion of guilt without independent proof of an ability to pay * * *." 485 U.S. at 628, 108 S.Ct. at 1427.

The United States Supreme Court agreed that the statute, at least as applied to a criminal contempt proceeding, was unconstitutional:

"As interpreted by the state court here, [the statute] requires respondent to carry the burden of persuasion on an element of the offense, by showing his inability to comply with the court's order to make the required payments. If applied in a criminal proceeding, such a statute would violate the Due Process Clause because it would undercut the State's burden to prove guilt beyond a reasonable doubt." 485 U.S. at 637, 108 S.Ct. at 1432. (Citation omitted.)

The state argues that Hicks is distinguishable because, in Oregon, the existence of a support order, together with the bare fact of an obligor's failure to pay, has traditionally been regarded as establishing a prima facie case of contempt, with "inability to pay" available only as an affirmative defense. See State ex rel. McKee v. McKee, 237 Or. 583, 585, 392 P.2d 645 (1964), overruled on other grounds State ex rel. Hathaway v. Hart, 300 Or. 231, 708 P.2d 1137 (1985); State ex rel. Blackwell v. Blackwell, 181 Or. 157, 164, 179 P.2d 278, 1023 (1947), overruled on other grounds State ex rel. Hathaway v. Hart, supra; State ex rel. Fry v. Fry, 28 Or.App. 403, 559 P.2d 1293 (1977). Accordingly, the state contends that, unlike in the California scheme, it is not required to prove defendant's ability to pay.

We do not agree with the state that the cases predating Hicks are still good authority insofar as they hold that, after the state proves nonpayment, a defendant can avoid contempt only by showing an inability to pay. That procedure--which effectively requires a defendant to disprove contempt--does not differ from California's and, under Hicks, it is not allowed. Proof of the ability to pay cannot be shifted away from the state. See In re Wynne and Wynne, 106 Or.App. 210, 212, 806 P.2d 723, rev. allowed 311 Or. 432, 812 P.2d 827 (1991).

The only question remaining is whether the state's evidence was sufficient to establish a prima facie case of contempt, including the element of ability to pay. ORS 33.010(1)(e) defines contempt as "[d]isobedience of any lawful judgment, decree, order or process of the court." Although the statute does not require any particular mental state, the Supreme Court has expressly added the requirement that, in proceedings under ORS 33.010(1)(e), "there must be evidence sufficient to support a finding that such a violation was 'willful' * * *." State ex rel. Oregon State Bar v. Wright, 280 Or. 713, 715, 573 P.2d 294 (1977).

Willfulness is related to a defendant's ability to pay. In State ex rel. Wolf v. Wolf, 11 Or.App. 477, 480, 503 P.2d 1255 (1972), the defendant was found in contempt for his willful refusal to make support payments, because he was capable of making at least partial payments but failed to do so. Likewise, in State v. Sizemore, 12 Or.App. 482, 484, 506 P.2d 502 (1973), we held that "the element of wilfullness was established, in part, by circumstantial evidence of the defendant's ability to pay at least...

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3 cases
  • State ex rel. Mikkelsen v. Hill
    • United States
    • Oregon Supreme Court
    • March 4, 1993
    ...payments to relator. The Court of Appeals reversed the circuit court on federal constitutional grounds. State ex rel. Mikkelsen v. Hill, 108 Or.App. 135, 813 P.2d 1130 (1991). We reverse the decision of the Court of The governing Oregon statute, as interpreted by case law and discussed belo......
  • State ex rel. Yancy v. Wilke
    • United States
    • Oregon Court of Appeals
    • November 3, 1993
    ...in contempt of court for failing to obey a child support order. The trial court, relying on our decision in State ex rel. Mikkelsen v. Hill, 108 Or.App. 135, 813 P.2d 1130 (1991), allowed defendant's demurrer on the ground that ORS 33.065(7), which makes inability to pay child support an af......
  • State ex rel. Mikkelsen v. Hill
    • United States
    • Oregon Supreme Court
    • December 17, 1991
    ...1196 822 P.2d 1196 312 Or. 527 State ex rel. Mikkelsen v. Hill NOS. A66027, S38446 Supreme Court of Oregon Dec 17, 1991 108 Or.App. 135, 813 P.2d 1130 ...

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