LLR No. 9609060.CA

LLR Ed. Note: This opinion may be subject to revision before official publication.

[1] Filed 9/25/96







[7] Petitioner,



[9] Respondent.


[11] Real Party in Interest.

[12] E017504

[13] (Super.Ct.No. D-108660)


[15] ORIGINAL PROCEEDINGS; Petition for mandate/prohibition or habeas corpus/certiorari. Riverside Superior Court, Becky L. Dugan, Temporary Judge. (Pursuant to Cal.Const., art.VI, Section(s) 21.) Order annulled.

[16] 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.


[18] 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.

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.)



[25] 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, 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, 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, similarly construing Hicks v. Feiock.) As Moss correctly notes, that is the case here.

[26] 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. *fn1 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; Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256.)



[27] 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.) Buckley remains the standard. (Board of Supervisors v. Superior Court (1995) 33 Cal.App.4th 1724, 1736.) 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; see also In re Cassill (1995) 37 Cal.App.4th 1081, 1087.)

[28] Code of Civil Procedure section 1209.5, which governs contempt proceedings involving violation of child support orders, provides that "proof that such 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 of noncompliance therewith shall be 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; Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) 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.)

[29] However, "[m]aking inability to pay a matter of defense does not place too harsh a burden on the contemner. [*fn2] 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; see also People v. Dilday (1993) 20 Cal.App.4th Supp. 1, 3-4, 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.


[30] 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.

[31] 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.) 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]), as is the due process clause of article I, section 15 of the California Constitution. (People v. Berryman, supra, 6 Cal.4th at p. 1083)." (People v. Memro (1995) 11 Cal.4th 786, 861.) However, as noted above, in contempt proceedings this deferential approach is modified, so that we apply a somewhat more rigorous analysis of the evidence.

[32] We think the trial court erred on this point. Although there was evidence that Moss occasionally did "odd jobs," there was no evidence concerning payment. For all that appears on the record, he may have been paid in kind -- with services, meals or chickens, for example. We do not think that any reasonable inference can be drawn from the fact that Moss appeared "well-dressed;" given that the contempt hearing occurred less than eighteen months after the date of the alleged first failure to pay, it cannot be said that Moss could not have owned eighteen-month-old clothing that still appeared neat.

[33] Insofar as the court relied on the fact that Moss might have sometimes paid his utility bills and fed himself, this too is insufficient. Mrs. Moss' testimony was vague as to the timing of Moss' alleged payment of utility bills; it certainly cannot support a finding that he used his own money for such things as utility bills on twelve occasions -- the number of counts of contempt found. Nor was it shown that any spare cash which Moss had during the period of the alleged contempts did not go to the feeding of his children during their visits. *fn3

[34] A troubling point arises with the trial court's remarks to the effect that if Moss had paid anything, the burden would have been on Ms. Ortiz to prove that he could have paid more, but that as he paid nothing, the court could find that he could have paid something and therefore was in contempt because he had not. This has a certain appeal, but at least in the circumstances of this case we think it is unworkable. Where there is no substantial evidence of any amount of income, the assumption that "you can always pay something" does not constitute substantial evidence.

[35] The use of a reductio ad absurdum is helpful here. How little could Moss have paid, and yet managed to keep the burden on Ms. Ortiz to prove that he could have paid more? $10 a month? $1 a month? A penny? Obviously it would be grossly unfair to allow a nonpaying parentto keep the burden on the aggrieved parent by a token payment so low that it constituted an insult. On the other hand, if there is no evidence of any specific amount of income, it is impossible to fix an amount which is sufficient to move the burden to the charging party. While it is true that a parent who is unable to pay the full amount ordered must pay as much of it as possible in order to avoid a finding of contempt, the trial court's duty is to make a specific finding on the amount which the contemnor is able to pay. (In re Jennings (1982) 133 Cal.App.3d 373, 385; see also In re Spollino (1962) 208 Cal.App.2d 783, 784, holding that a finding that the contemnor has a "partial ability to pay" was insufficiently specific [emphasis in original].) *fn4 The trial court did not do so here and we do not see how it could have done so. *fn5

[36] However, we confine our holding to this case. The evidence was not sufficient to prove beyond a reasonable doubt that Moss had the ability to pay anything on his support obligation. *fn6


[37] This brings us to the trial court's second reason for imposing the contempt order: the view, quite possibly well-founded in fact, that Moss had the ability to earn and could validly be held in contempt for his failure to seek employment.

[38] In this context, we will accept the trial court's observations to the effect that Moss appeared to be physically and mentally normal and "could get a job flipping hamburgers at McDonald's." We will further accept as true for the purposes of argument the finding that Moss had simply refused to make any good faith efforts at finding employment. *fn7 While we also agree with the trial court that it is outrageous that a parent can so avoid any consequences for his willful decision to remain unemployed and penniless rather than support his children, we reluctantly conclude that this is the law.

[39] The leading case is In re Jennings, supra, 133 Cal.App.3d 373. The facts are analogous to those here, although the evidence of willfulness was stronger in that Husband had been self-employed as an architect and had earned an average of almost $70,000 per year prior to the support judgment, following which he apparently "let his business interests . . . depreciate to the state where they were practically useless," gave up his practice, and declined other offers of professional employment. (133 Cal.App.3d at pp. 377-379.) In making its findings of contempt, the trial court used harsh language, apparently fully justified by the facts, regarding Husband's deliberate choice to "collapse the entire structure of [his] life rather than comply with [his] duties under the law as a husband."

[40] Nevertheless, the Court of Appeal annulled the order, holding that a sentence of incarceration could not be imposed merely because Husband chose not to seek employment or to earn money in any way. The court relied on Ex parte Todd (1897) 119 Cal. 57, in which the Supreme Court overturned a judgment of contempt based on the contemnor's failure to seek employment, although he was admittedly without funds. The court held, in what must be considered the strongest terms, "This order was clearly in excess of the power of the court, which cannot compel a man to seek employment in order to earn money to pay alimony, and punish him for his failure to do so." (119 Cal. at p. 58.) *fn8

[41] As the Jennings court noted, Todd was followed more recently in In re Brown (1955) 136 Cal.App.2d 40. Brown is perhaps more similar to this case than is Jennings in that in Brown there was no allegation that the contemnor had voluntarily given up employment or refused an offer; he was merely content to be supported by his new wife. This, the court held, could not support a contempt citation. *fn9

[42] The basis for these holdings, as Jennings explains, is the constitutional prohibition against involuntary servitude, as contained in the Thirteenth Amendment to the United States Constitution, and paralleled in Article I, section 6 of the state Constitution. The court also pointed out that the United States Supreme Court, discussing the Antipeonage Act (implementing the Thirteenth Amendment under the enabling language of the Amendment; see now 18 U.S.C.A. Section(s) 1581, 42 U.S.C.A. Section(s) 1994), has stated that

[43] ". . .Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor." (Pollock v. Williams (1944) 322 U.S. 4, 18.) *fn10

[44] Jennings is not materially distinguishable from the case at bar and has not been overruled or criticized. *fn11 As that court observed, it is well-established that a court may take a parent (or spouse's) ability to earn into account when making a support order. (See cases collected in Marriage of Stevenson (1995) 39 Cal.App.4th 71, 79.) Such an order may be enforced upon any property which the obligor acquires, for example through gift or inheritance. Theoretically, the threat of such proceedings, as well as natural self-interest, will induce or encourage most such obligors to put forth their best efforts in seeking and maintaining suitable employment. (See conc. and diss. opn. of Traynor, J., in Dimon v. Dimon (1953) 40 Cal.2d 516, 528, overruled on other grounds in Hudson v. Hudson (1959) 52 Cal.2d 35, 744-745.)

[45] Nevertheless, we would be inclined to disagree with Jennings if that decision were not based upon Supreme Court precedent, to which we must adhere. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

[46] Although Ex Parte Todd, supra, 119 Cal.57 involved nonpayment of alimony (spousal support), we reluctantly concede that in the absence of a distinction drawn by the high court, the principles applied by the court to govern that case must be applied similarly to nonpayment of child support. However, we think that in an age in which the problem of children whose parents do not support them is placing ever-increasing burdens on society as a whole, the scope of the constitutional protections deserves re-examination. After all, an adult former spouse can be expected to take some responsibility for him or herself, but a child is the moral, as well as legal, responsibility of its parents. The level and quality of the obligation owed by a parent to a child is far different, and far greater, even than that owed by one spouse to the other, and we question whether the "involuntary servitude" of a parent obliged to work to support the child is constitutionally more offensive than the deprivations visited upon the child. We invite the Supreme Court to reconsider the holding of Ex Parte Todd, at least in the context of child support. *fn12

[47] Absent such reconsideration, we follow the law of this state and hold that petitioner cannot be compelled to work by the threat of imprisonment or other restriction on his liberty. The order of contempt is annulled.


[48] Hollenhorst Acting P.J.

[49] We concur:

[50] McKinster J.

[51] Richli J.


[52] *fn1 In re Feiock, supra, was the Court of Appeals' second chance at the case after the United States Supreme Court remanded for a determination of whether or not the contempt was civil or criminal in nature. The underlying issue was whether due process was offended by a construction of Code of Civil Procedure section 1209.5 which made inability to pay an affirmative defense rather than an element of the contempt to be proved by the charging party. The California court in Feiock held that it does not.

[53] *fn2 We have used the alternative spelling "contemnor." (See e.g. Betsworth v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 586, 597.)

[54] *fn3 Mrs. Moss testified that her son often brought the grandchildren to her house to eat during visits, but she could not say, and did not say, that they never ate at their father's home.

[55] *fn4 Jennings involves spousal support rather than child support, but the same principles apply on this point.

[56] *fn5 Nor would we encourage trial courts to satisfy this requirement of Jennings by making a finding that a nonpaying spouse or parent could have paid e.g. one dollar per month. Such a practice would merely involve the court in a disingenuous farce.

[57] *fn6 We also find that it was not sufficient even under a civil standard of preponderance of the evidence. Thus, even if the court were to strike the "penalty" of probation, the finding of contempt could not stand.

[58] *fn7 In fact, the evidence on these points too is far from overwhelming. The only pertinent testimony was that of Moss' mother, who testified that Moss told her that he had tried to find work. Obviously, this is not substantial evidence that he did not try to find work. The finding of willful failure to become employed was really based on an assumption that any able-bodied young male can find some employment. (Cf. Jennings, supra, in which there was positive evidence that the contemnor had turned down a job offer.) We are not sure if this is a sustainable assumption, but it makes no difference to our analysis.

[59] *fn8 In 1988, the Legislature enacted what is now Family Code section 4505, which provides that if a defaulting parent or spouse asserts that his or her default is due to unemployment, the court can compel him or her to submit regular reports of his or her efforts to find a job. The statute has received no published construction of which we are aware and we have no cause here to consider its constitutionality.

[60] *fn9 Brown appears to accept that a spouse or parent who voluntarily puts it out of his or her power to perform support obligations is in a different boat from the one who is merely indifferent or indolent. There is no evidence in this case to support a theory of "voluntary disablement" -- no evidence, for example, that Moss gave away money or quit a job. Thus, we need not consider whether contempt could validly be found in that situation.

[61] *fn10 As we have discussed above, the non-purgeable condition of probation in the order constitutes a criminal penalty for constitutional and federal purposes. Under state law, contempts have generally been held to be at least "quasi-criminal" in nature even if the contemnor had the power to purge the contempt. (See discussion in In re Feiock, supra, 215 Cal.App.3d at pp. 145-146, fn. 6.) Although it does not discuss the constitutional underpinnings (either federal or state), the court in Ex parte Todd, supra, 119 Cal. 57, struck a finding of contempt based on failure to obtain employment even though the sentence of imprisonment was subject to cancellation if the contemnor paid the sums due. We agree with the comments in In re Feiock to the effect that, for due process purposes, it is not entirely satisfactory to distinguish between criminal and civil contempts by whether or not the contemnor is subject to a non-purgeable penalty. In this case, for example, had the court not imposed probation, it could have been argued that the matter was wholly civil. Yet if Moss is simply not able to pay, it cannot possibly be permissible to imprison him in order to "persuade" him to do something he cannot, without granting him the due process protections given to a criminal contemnor.

[62] *fn11 At the hearing, the trial court spoke briefly of "later cases" but respondent cites none but People v. Dilday, supra, 20 Cal.App.4th Supp. 1. However, the only pertinent holding of the case is simply that inability to pay is an affirmative defense, following In re Feiock. It says nothing about the effect of a contemnor's failure to seek or obtain employment on ability to pay.

[63] *fn12 We note that other states, at other times, have recognized no constitutional hindrance to imprisoning a nonsupporting parent for the failure to obtain employment. See Warwick v. Warwick, 438 N.W.2d 673, 679 (Minn.App.1989) (order to obtain employment); Diver v. Diver (1988) 402 Mass.599, 524 N.E.2d 378, 380 (contempt proceeding based on father's refusal to obtain employment); Zitlow v. State (1934) 213 Wis.493, 252 N.W.2d 358, 359(criminal prosecution for failure to support based on father refusal to report for work under a program similar to "workfare.")