November 28, 2012 By Paul Wallin

Child support orders are based on an obligation arising out of parentage and are imposed by law.  Thus, they are enforceable by contempt. [Moss v. Super.Ct. (Ortiz) (1998) 17 CA4th 396, 422, 71 CR2d 215, 232.]  The contempt remedy for noncompliance with a court order made under the Family Code is subject to a three years statue of limitation. [CCP section 1218.5(b); Moss v. Super.Ct. (Ortiz), supra, 17 C4th at 403, 71 CR2d at 219, fn. 2.]  Each month within the three-year period for which payments were in default is separately punishable as a separate count of contempt. [CCP section 1218.5(b); Moss v. Super.Ct. (Ortiz), supra, 17 C4th at 403, 71 CR2d at 219, fn. 2.]
The facts generally necessary to establish a prima facie contempt of a family law order are: (i) a valid order; (ii) the citee’s knowledge of the order; and (iii) the citee’s willful disobedience of the order. [In re Marcus 920060 138 CA4th 1009, 1014, 41 CR 861, 865.]  In making a family law support order, the family court necessarily must determine the obligor’s ability to pay (Fam.C. sections 4053(c), (d)).  The record in the underlying proceedings may be submitted, (e.g. to show knowledge of the order by presence in court or service of notice of entry), and either party can call witnesses and testify personally. [Freeman v. Super. Ct. (Freeman) (1955) 44 C2d 533, 536-537, 282 P2d 857, 859.]
Since the court has already determined the obligor/citee’s ability to pay the underlying order, present ability to pay is not an element of a prima facie contempt case predicated on nonpayment.  Rather inability to pay is an affirmative defense that must be proved by citee. [CCP section 1209.5; Marriage of Sachs (2002) 95 CA4th 1144, 1153, 116 CR2d 273, 280-281.]  As a result, the obligor bears the burden of proving, by a preponderance of the evidence, inability to comply with the underlying child support order as an affirmative defense. [Moss v. Super.Ct. (Ortiz) supra, 17 C4th at 428, 71 Cr2d at 235-236.]  The citee does not meet this burden, however, with conclusory declarations.  He or she must set forth evidentiary facts showing why complete performance was impossible. [ Moss v. Super.Ct. (Ortiz), supra, 17C4th at 401, 71 CR2d at 217.]
CCP section 1218 (Section 1218) generally prescribes a fine and/or imprisonment penalty:  For each act of contempt, you may be fined up to $1,000.00 and/or imprisoned for up to five days. [CCP section 1218(a).]  Notwithstanding the Section 1218 five-day maximum on imprisonment, when the contempt consists of failure to perform an act still within the contemnor’s power to perform, the contemnor may be imprisoned until performance. [CCP section 1219(a).]
Under CCP section 1218(c) punishment is mandated and not discretionary.  This mandatory community service/imprisonment provision supplants application of the section 1218(a) discretionary punishment provision in cases of Family Code contempts; i.e. trial courts have no discretion to withhold punishment for contempt of a Family Code order. [Goold v. Super.Ct. (Goold) (2006) 145 CA4th 1, 10, 51 CR3d 455, 461.]  Upon a first finding of contempt, the contemnor must be ordered to perform community service of up to 120 hours, or to be imprisoned up to 120 hours (five days), for each count of contempt. [CCP section 1218(c)(1).]  The court must take the parties’ employment schedules into consideration when ordering community service and/or imprisonment as a contempt penalty pursuant to section 1218(c). [CCP section 1218(c)(4).]

We hope this gives you a basic understanding of how a Contempt proceeding works. Clearly this is complex area of law and requires a  judicial evidentiary hearing.  If you or a loved one needs help with any aspect of rebutting such a presumption or any type of contempt or family law enforcement matter, call Wallin & Klarich today.  Wallin & Klarich has a team of highly skilled, aggressive family law attorneys ready to take your call 7 days a week, 24 hours a day! 888-749-7428.  Wallin & Klarich has been in the business of helping people for over thirty years and we would like to help you. We have offices in Los Angeles, San Bernardino, Victorville, Riverside and Orange Counties. We will be there when you call.

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