The parent or obligated spouse fails to pay child, spousal, or family support ordered by the Family Court, resulting in contempt of court at the time the support payment is due. A judgment or order rendered or rendered pursuant to the California Family Code may be enforced by the Family Court for contempt at its discretion, under § 290 of the Family Code.
Each month of failure to pay full child, spousal, or family support in due time constitutes a separate contempt charge or charge, for which a penalty is imposed for each proven charge, per section 1218.5 (a) of the California Code of Civil Procedure. .
The statute of limitations to initiate an action for contempt based on non-payment of child, spousal or family support is three (3) years from the due date of payment, according to the section 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 of Contempt, and the required Judicial Council attachment, depending on the type of underlying order issued.
Elements of contempt and
Test loads and standards:
§ 1209.5 of the California Code of Civil Procedure establishes the elements of civil contempt based on breach of a child support order as follows:
(1) valid underlying support order from a court of competent jurisdiction;
(2) knowledge of the debtor (contemner) of the order through:
(a) proof that the order was made, presented, and served on the obligated parent; gold
(b) proof that the obligated parent was present in court at the time the order was entered; Y
(3) breach of support order, as prima facie evidence of contempt of court.
These three (3) elements are also indicated in In re Ivey (2000) 85 CA9th 793, 803, 102 CR 447, which also held that:
“If the petitioner proves those elements beyond a reasonable doubt the offense is established. You don’t need to go any further. To prevail over the affirmative defense from inability to comply With the support order, the contemner (or contemner) must prove such disability by a preponderance of the evidence. “
The alleged debtor’s ability to pay (contemner) was not considered an element of contempt because “the non-payment that constitutes contempt occurred shortly after the determination of ability to pay had been made (on the underlying orders)”, on In re Ivey, on, which implies the non-payment of a father to the mother pendente lite attorney and expert fees in a criminal action for contempt.
Therefore, while the proponent (petitioner) of the contempt has the burden of proving the elements of the contempt beyond a reasonable doubt (a standard of proof in a criminal case), the alleged contemner has the burden of proving the inability to serve as an affirmative defense by a preponderance of the evidence (a civil case standard of proof).
Types of contempt proceedings
And sentences imposed:
Contempt proceedings can be civil or criminal in nature. Civil contempt is governed by secs. 1209-1222 of the California Code of Civil Procedure; while criminal contempt for violation of criminal statutes is prosecuted as a crime, under section 166 of the California Penal Code.
Contempt proceedings are considered “civil” in nature, if the contempt sentence coersively subjects the debtor or contestant to prison only until they comply with the acts ordered by the court. Therefore, a “civil” contemner may be imprisoned indefinitely pending enforcement 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 ordered acts.
Lack of “ability to purge” characterizes contempt proceedings as “criminal” in nature. It is punitive, rather than coercive. And a criminal judgment for contempt subjects the debtor or contender to a fine not to exceed one thousand dollars ($ 1,000.00), gold imprisonment that does not exceed five (5) days or both for each count of contempt.
Thus, the potentially indefinite incarceration resulting from a civil contempt sentence arguably makes it more burdensome, even more punitive than criminal contempt, under certain circumstances.
But the parties and even the court may not know what kind of contempt proceedings they are in, until the court pronounces or issues the particular judgment.
The complexities and uncertainties of the results of contempt proceedings have relegated contempt as a tactical tool to enforce an agreement by the defaulting parent or spouse.