Moss

Grover Trask, District Attorney, James P. Fullmer and Glen O. Brandel, Deputy District Attorneys, and Michael H. Clepper for Real Party in Interest.

Phillip J. Cline, District Attorney (Tulare) and John S. Higgins, Jr., Deputy District Attorney, as Amici Curiae on behalf of Real Party in Interest.

OPINION

BAXTER, J.

May a parent whose inability to pay court-ordered child support results from a willful failure to seek and obtain employment be adjudged in contempt of court and punished for violation of the order? Concluding that it was bound by this court's decision a century ago in Ex parte Todd (1897) 119 Cal. 57 [ 50 P. 1071 ] ( Todd ), which was recognized as binding precedent in In re Jennings (1982) 133 Cal. App.3d 373 [ 184 Cal. Rptr. 53 ] ( Jennings ), the Court of Appeal reluctantly held that to impose a contempt sanction in those circumstances is beyond the power of the court. It therefore annulled the judgment of contempt in issue in this proceeding. Although not expressly articulated in Todd , which, like Jennings , involved spousal support, the apparent basis for the Todd result was either an assumption that employment sought under even an indirect threat of…

May a parent whose inability to pay court-ordered child support results from a willful failure to seek and obtain employment be adjudged in contempt of court and punished for violation of the order? Concluding that it was bound by this court’s decision a century ago in Ex parte Todd (1897) 119 Cal. 57 [ 50 P. 1071 ] (Todd), which was recognized as binding precedent in In re Jennings (1982) 133 Cal.App.3d 373 [ 184 Cal.Rptr. 53 ] (Jennings), the Court of Appeal reluctantly held that to impose *401 a contempt sanction in those circumstances is beyond the power of the court. It therefore annulled the judgment of contempt in issue in this proceeding. Although not expressly articulated in Todd, which, like Jennings , involved spousal support, the apparent basis for the Todd result was either an assumption that employment sought under even an indirect threat of imprisonment for violation of the support order constituted involuntary servitude or a belief that imposition of a contempt or criminal sanction for failure to pay support constituted imprisonment for debt.

We conclude that there is no constitutional impediment to imposition of contempt sanctions on a parent for…

I concur in the majority opinion except as to the disposition. The majority holds, and I agree, that a parent may not avoid criminal contempt sanctions for violating a child support order by asserting the defense of financial inability to comply with the order if that inability results from the parent’s unexcused failure to seek or accept suitable employment. (Maj. opn., ante, at p. 401.) But the majority declines to apply this holding to Brent Moss, the alleged contemner in this case, stating that the decision “may reasonably be seen as both an unanticipated expansion of the law of contempt in the child support context and a change in the evidentiary burden of which Brent had no notice at the time of trial” (id. at p. 429), and that for this reason “[njeither rule may be retroactively applied” (ibid.). I disagree.

The majority invokes the rule that a criminal conviction may not be based upon “an unforeseeable judicial enlargement of a criminal statute.” (Bouie v. City of Columbia (1964) 378 U.S. 347, 353 [ 84 S.Ct. 1697, 1702 , 12 L.Ed.2d 894 ] (Bouie).) Just as the ex post facto provisions of the federal and state *431 Constitutions prohibit the legislative branch from enacting…