State ex rel. Robertson v. Robertson

RIGGS, J.

Father was held in civil contempt for failure to make child support payments. We affirm.

Father fell $15,000 behind in child support payments ordered by a judgment of dissolution. The state moved for father to show cause why he should not be found in civil contempt.¹ Father moved to dismiss the proceeding on the ground that only a criminal contempt sanction could be imposed for nonpayment of support. That motion was denied, but raised again at the show cause hearing.

At the hearing, the state presented proof that there was a valid order, that father knew of the order and that he had not complied. It also presented evidence that father owned an auto detailing business and grossed over $13,000 from a single customer in a recent 11-month period. The state submitted father’s Affidavit of Indigency and Request for Appointment of Counsel. That affidavit listed father’s income at $700-$800 a month, and listed his monthly child support obligation as $300, when it is $600. The affidavit omitted his spousal support obligation and listed his fiance and her son as dependents with no income. The state called father as a witness but he refused to testify, citing his privilege against self-incrimination. Father presented no evidence. The trial court found father in civil contempt and ordered him jailed until he paid the full child support arrearage.

Father argues on appeal that the trial court could not sanction a failure to pay child support with civil contempt. Father is wrong. “Contempt by failure to pay child support can be either criminal or civil.” State ex rel Gibbon v. West, 118 Or App 580, 583, 848 P2d 637 (1993).

Father next argues that the trial court could not infer from his silence that he had a present ability to pay the arrearage. It is not clear that the trial court made that inference, but even if it did, it was harmless error because present ability to pay is not part of the state’s prima facie case. State ex rel Gibbon v. West, supra. All the state must show is that father knew of a valid court order which he wilfully disobeyed. Couey and Couey, 312 Or 302, 306, 821 P2d 1086 (1991). Inability to pay is an affirmative defense which father chose not to present. State ex rel Mikkelson v. Hill, 315 Or 452, 456, 847 P2d 402 (1993).

Finally, father argues that the court erred by requiring him to pay the arrearage in order to purge the contempt. He argues that the court had insufficent evidence that he was presently able to pay the arrearage. If the evidence is insufficient, father’s intransigence is to blame. Father had the burden of proving a present inability to pay. State ex rel Mikkelson v. Hill, supra. Although Mikkelson involved slightly different facts, we see no principled distinction which permits the application of Mikkelson to reach the result urged by the dissent. Father’s purposeful failure to show inability to pay the arrearage is not grounds for setting aside the contempt.

Father’s other argument is without merit and requires no discussion.

Affirmed.

1 The motion to show cause was filed before the repeal of ORS 33.010 and ORS 33.020 by Oregon Laws 1991, chapter 724, section 32.