No child, spousal, or family support ordered by the Family Court is paid by the obligor parent or spouse, resulting in contempt of court at the time the support payment was due. A judgment or order made or entered pursuant to the California Family Code may be enforced by the Family Court by contempt in its discretion, under § 290 of the Family Code.Each month of failure to pay in full, child, spousal, or family support when due constitutes a separate count or charge of contempt, for which punishment is imposed for each count proven, under § 1218.5(a) of the California Code of Civil Procedure.The period or statute of limitations for commencing a contempt action based on failure to pay child, spousal, or family support is three (3) years from the date that the payment was due, under § 1218.5(b) thereof.Contempt proceedings are initiated in California by completing and filing Judicial Council Form FL-410, Order To Show Cause and Affidavit For Contempt, and the required Judicial Council attachment, depending on the kind of underlying order issued.Elements Of Contempt AndBurdens And Standards Of Proofs:§ 1209.5 of the California Code of Civil Procedure states the elements of civil contempt based on failure to comply with a child support order as follows:(1) valid underlying support order of a court of competent jurisdiction;(2) obligor’s (contemner’s) knowledge of the order through:(a) proof that the order was made, filed and served on the obligor parent; or(b) proof that the obligor parent was present in court at the time the order was pronounced; and(3) noncompliance of the support order, as prima facie evidence of a contempt of court.These three (3) elements are also stated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which further held that:”If the petitioner proves those elements beyond a reasonable doubt the violation is established. He or she need go no further. To prevail on the affirmative defense of inability to comply with the support order, the contemnor (or contemner) must prove such inability by a preponderance of the evidence.”Ability to pay by the alleged obligor (contemner) was not considered an element of contempt because “the failure to pay constituting the contempt occurred shortly after the determination of ability to pay had been made (in the underlying orders),” in In re Ivey, supra, involving a father’s failure to pay the mother’s pendente lite attorney and expert fees in a criminal contempt action.Thus, while the proponent (petitioner) of the contempt has the burden of proving the elements of contempt beyond a reasonable doubt (a criminal case standard of proof), the alleged contemner has the burden of proving inability to comply as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).Types Of Contempt ProceedingsAnd Sentences Imposed:Contempt proceedings may be civil or criminal in nature. Civil contempt is governed by §§ 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of penal statutes is prosecuted as a crime, under § 166 of the California Penal Code.Contempt proceedings are considered “civil” in nature, if the contempt judgment coersively subjects the obligor or contemner to imprisonment only until he or she complies with the act(s) ordered by the court. So, a “civil” contemner may be incarcerated indefinitely pending compliance of the contempt order, under § 1218(c) of the California Code of Civil Procedure. But the civil contemner has the “ability to purge” by performing the act(s) ordered.The lack of “ability to purge” characterizes contempt proceedings as “criminal” in nature. It is punitive, rather than coercive. And a criminal contempt judgment subjects the obligor or contemner to a sentence of fine not exceeding one thousand dollars ($1,000.00), or imprisonment not exceeding five (5) days or both for each count of contempt.Thus, the potentially indefinite incarceration resulting from a civil contempt judgment arguably renders it more onerous, even more punitive than criminal contempt, under certain circumstances.But the parties and even the court may not know what type of contempt proceedings they are in, until the particular judgment is pronounced or issued by the court.The complexities and uncertainties of outcomes of contempt proceedings have relegated contempt as a tactical tool for exacting settlement from the defaulting parent or spouse.
