In Re Feiock

We originally granted the petition for a writ in this case. (In re Feiock (1986) 180 Cal.App.3d 649 [ 225 Cal.Rptr. 748 ].) It returns to us by way of writ of certiorari from the United States Supreme Court vacating the judgment and remanding for further proceedings. (Hicks v. Feiock (1988) 485 U.S. 624 [ 99 L.Ed.2d 721 , 108 S.Ct. 1423 ].) Based upon new arguments, we deny the writ of habeas corpus.

I

The underlying facts remain the same. We reproduce them here with the necessary procedural update: “Phillip Feiock seeks relief from a judgment of contempt for failure to pay child support. His primary contention concerns the constitutionality of Code of Civil Procedure section 1209.5, which requires the court presume prima facie evidence of contempt after proof of noncompliance with a valid court order.

“Feiock was ordered to pay child support for his three children as part of a dissolution action. Thereafter, in 1983 the district attorney filed an action under the Uniform Reciprocal Enforcement of Support Act, which resulted in a temporary support order of $150 per month. Feiock’s failure to pay anything between September of 1984 and February of 1985 resulted in a…

I agree with the majority’s decision the proceedings here were unmistakably criminal in nature. I disagree, however, with the majority’s holding the trial court correctly denied the motion for nonsuit. As we said in our original opinion (In re Feiock (1986) 180 Cal.App.3d 649 [ 225 Cal.Rptr. 748 ]), Code of Civil Procedure section 1209.5 unconstitutionally lessens the moving party’s burden of proof.

The majority contends our original analysis was incorrect because “ability to pay” is an affirmative defense to this type of contempt, and not an element of the offense. We were not wrong. As I shall explain, the ability to comply with the court’s order is a necessary element of proving contempt of a court order; the moving party bears the burden of proving that element.

Petitioner was alleged to have violated the general contempt statute: Code of Civil Procedure section 1209. “Disobedience of any lawful judgment, order, or process of the court” constitutes contempt under Code of Civil Procedure section 1209, subdivision (a)(5). Section 1211 of the Code of Civil Procedure outlines the procedure for initiating this type of contempt: “When the contempt is not committed in the immediate…

Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, Maurice L. Evans, Bruce M. Patterson, David L. Himelson, William W. Bedsworth, Eric W. Snethen and E. Thomas Dunn, Jr., Deputy District Attorneys, for Real Party in Interest.

OPINION

WALLIN, J.

We originally granted the petition for a writ in this case. ( In re Feiock (1986) 180 Cal. App.3d 649 [ 225 Cal. Rptr. 748 ].) It returns to us by way of writ of certiorari from the United States Supreme Court vacating the judgment and remanding for further proceedings. ( Hicks v. Feiock (1988) 485 U.S. 624 [ 99 L.Ed.2d 721 , 108 S.Ct. 1423 ].) Based upon new arguments, we deny the writ of habeas corpus.

The underlying facts remain the same. We reproduce them here with the necessary procedural update: "Phillip Feiock seeks relief from a judgment of contempt for failure to pay child support. His primary contention concerns the constitutionality of Code of Civil Procedure section 1209.5, which requires the court presume prima facie evidence of contempt after proof of noncompliance with a valid court order.

"Feiock was ordered to pay child support for his three children as part of a dissolution action.…