In Re Ivey

In a child custody and support proceeding, a father was found to be in contempt of orders to pay the mother’s pendente lite attorney and expert fees. He filed a petition for writ of habeas corpus, contending the family law court had improperly utilized mandatory presumptions, relating to the elements of knowledge and ability to pay, to find him guilty of criminal contempt. We conclude that, where ability to pay has already been determined by the family law court in ¡making the order underlying the contempt, ability to pay is not an element of the contempt, but rather inability to pay is an affirmative defense. We further conclude the instant contempt proceeding is criminal in nature, and while a mandatory presumption may not be utilized to find an individual guilty of criminal contempt, a permissive inference may be utilized. Because the family law court properly utilized a permissive inference of knowledge in determining guilt, we deny the petition for writ of habeas corpus.

Facts and Procedural Background

Petitioner Artis Ivey (father) and real party in interest Shelita Washington (mother) are the parents of three children. The parties have never been married. The…