Moss v. Superior Court – Failure to Pay Child Support – Contempt
Moss v. Riverside City Superior Court, 17 Cal.4th 396, 950 P.2d 59 (Cal. 1998).
NATURE OF THE CASE: This case involved a contempt issue in the context of a failure to pay child support.
FACTS: A judgment of dissolution ordered H to pay $438 per month (later modified to $385 per month) to support his two children. H was unemployed at the time and the order was based on his ability to earn $1670 per month in gross income.
H failed to make payments from July 1994 through June 1995. A total of $5,210 was due and unpaid. Contempt was issued and H was served and directed to appear and show why he was not guilty of contempt. H answered that he was unemployed and when asked if he was getting a job his reply was that he was trying. W’s lawyer argued that H had the burden of proof to show that H did not have the ability to comply. The court ruled for W and found that H was capable of work and found H guilty of contempt. The only factual finding was that H had the ability to work. H appealed and the Court of Appeals ruled for H on the grounds that forcing him to work would be involuntary servitude. This appeal resulted.
ISSUE: May a parent whose inability to pay court ordered child support due to a willful failure to seek and obtain employment be adjudged in contempt of court and punished?
RULE OF LAW: Yes. A parent whose inability to pay court ordered child support due to a willful failure to seek and obtain employment may be adjudged in contempt of court and punished.
HOLDING AND DECISION: A court order requiring that a parent support a child may require that the parent seek employment. This is not a form of peonage as the parent is not under any obligation to any single employer. The parent is free to elect the type and form of employment. The Thirteenth Amendment does not prohibit enforced labor as punishment for a crime and does not prevent government entities from compelling the performance of civic duties such as jury service, military service, or road work. A parent’s duty to support a child is a social obligation no less than compulsory military service, road building and jury service.
Undertaking employment because an income is necessary to enable a parent to comply with a valid court order to support a child is not an imposition of governmental control over the type of employment or the employer. Further, the prohibition of imprisonment for debt does not support an application of the Todd holding to child support obligations. Family support obligations are not ordinary debts subject to the constitutional prohibition of imprisonment for debt. Even if such an obligation were considered a debt, children are dependent on their parents for the necessities of life and it is essential to the public welfare that parents provide support to care for their needs. A parent who can work and knows that support is due but willfully refuses to work acts against fundamental societal norms and intentionally prejudices the rights of his children.
A contempt sanction or criminal penalty may be imposed for violation of a support order that is based on earning capacity when inability to comply with the order is caused in whole or in part by the parent’s willful failure to work. As for burden of proof; inability to comply with an order is an affirmative defense, which must be proven by a preponderance of the evidence by the alleged contemnor. However, under these facts, due process concerns must take precedence. We disapprove of Todd and under our partial disapproval of the Feiock rule, H has the burden of proof. However, neither rule can be retroactively applied to H because he had no notice of their applications while at trial. Due process precludes retroactive application under either rule. An unforeseeable and retroactive judicial expansion of the law cannot be imposed. H could have reasonably relied on Todd in his belief that he cannot be compelled to find work. H could have also relied on Feiock where he was only required to offer sufficient evidence to raise the issue of the inability to pay.
DISPOSITION: Affirmed.