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Moss v. Superior Court (Ortiz), 17 Cal.4th 396, 950 P.2d 59, 71 Cal.Rptr.2d 215, 98 Cal. Daily Op. Serv. 852, 98 Daily Journal D.A.R. 1141

Facts

Brent N. Moss was ordered to pay child support of $483 per month for his two children following a judgment of dissolution. He failed to make any payments from July 1994 to June 1995, accumulating a debt of $5,210. At the time of the support order, he was unemployed, and the court found that he had the ability to earn income but had not made efforts to seek employment. The contempt proceedings were initiated by his ex-wife, Tamara S. Ortiz, who alleged that he willfully disobeyed the support order.

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.

Issue

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?

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?

Rule

The court concluded that there is no constitutional impediment to imposing contempt sanctions on a parent for violation of a child support order when the parent's financial inability to comply is due to a willful failure to seek employment. Additionally, inability to pay is an affirmative defense that must be proven by the alleged contemner.

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.

Analysis

The court applied the rule by examining the evidence presented during the contempt proceedings. It found that while Moss was unemployed, there was no evidence that he was unable to work or that he had made genuine efforts to seek employment. The court noted that he appeared to have some financial resources and could have sought employment to meet his child support obligations. Therefore, the court concluded that the contempt finding was justified based on his willful failure to seek 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.

Conclusion

The Supreme Court affirmed the Court of Appeal's annulment of the contempt order, stating that the evidence did not sufficiently prove that Moss had the ability to comply with the support order under the existing legal standards.

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.

Who won?

Brent N. Moss prevailed in the case because the Supreme Court upheld the annulment of the contempt order, finding that the evidence did not meet the burden of proof required to establish his ability to pay child support.

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.

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