Child Support Ruling Goes to High Court : Justices to Decide Who Must Prove There Is an Ability to Pay

The U.S. Supreme Court agreed Monday to review a state appellate court decision that, Orange County prosecutors claim, makes it impossible to force many parents in the county to pay child support.

Last April, the 4th District Court of Appeal in Santa Ana ruled that a father could not be held in contempt of court for failing to pay child support without proof that he was financially able to pay. The California Supreme Court declined to review that decision.

State law provides a five-day jail sentence for contempt of court for parents who fail to abide by a court order to pay support. In order to grant the original child support order, a court must determine that the spouse had the financial ability to pay.

The key issue in the case to be heard by the U.S. Supreme Court is who must prove during a contempt hearing that the parent is able to pay. The state appellate court ruled that putting the burden of proof on the parent rather than the prosecutor would deprive the defendant of the constitutional right to a presumption of innocence.

“The law has a single purpose: to facilitate the collection of child-support payments,” said E. Thomas Dunn Jr., a deputy district attorney involved in the appeal. “It’s not to punish but to get people to pay the support they owe.

“If it has an incidental effect (jail), that’s the way it goes.”

The case that will be reviewed by the high court involves Philip and Alta Sue Feiock. They were divorced in Orange County in 1976. The husband failed to make $150-a-month, court-ordered payments in 1985.

At a contempt-of-court hearing, prosecutors proved he knew of the court order and failed to comply. A judge found him in contempt, suspended a 25-day jail sentence, placed him on probation and ordered him to pay. The court of appeal overturned that ruling.

Making the district attorney’s office prove ability to pay over and over for every weekly or monthly payment that is missed would be burdensome and in some cases impossible, prosectors claim. For the self-employed who keep their own records, they add, proof is often especially difficult.

But the court of appeal ruled that any contempt of court punishable by incarceration is like a criminal proceeding, and the burden of proving the violation therefore must be with the state.

“The prosecution retains the burden of proving every element of the offense, including the ability to pay at the time payment was due,” the appellate court said.

Cynthia Besemer, coordinator of the state attorney general’s child support unit, said the decision would “definitely have a negative impact on enforcement of child support across California.”

“There are not enough investigators available to have one sitting in each debtor’s driveway,” the Orange County district attorney’s office said in arguments presented before the court. By giving the county the burden of proof in child support cases, the California court “effectively exempts a class of individuals--those who are self-employed--from application of the law.”

$1.7 Million Owed

As of last August, about 19,000 Orange County residents owed more than $1.7 million in court-ordered child support, according to prosecutors.

Richard L. Schwartzberg, who won the case in the state courts, said Monday he is prepared to argue it again. Schwartzberg said financial circumstances often change between the first court order and a contempt hearing.

“The difficulty is that the further away you get from the original order, the less reliable (the original finding of ability to pay) is,” Schwartzberg said.

Deputy Dist. Atty. Dunn said only two states now follow the rule handed down by the 4th District Court of Appeal. He said 38 have specifically rejected the approach, and in 10 others the issue has not been decided.

Parents found in contempt of court are never jailed unless they continue to ignore court orders, Dunn said. They have the right to appeal and to ask a judge to modify a support decree based on changed circumstances, he said.

Lawyers on both sides of the case agreed that a U.S. Supreme Court decision is at least a year away.

Times staff writer David G. Savage contributed to this story from Washington, D. C.