Moss v. Superior Court,
17 Cal. 4th 396 (1998).



Facts: Ajudgment of dissolution filed on March 17, 1992 orderedD to pay $438 arnonthto support his two children. That order was modified in November 1994 to $385 per month. No payments were made from July 1994 through June 1995. A total of $5,210 was due and unpaid. D was unemployed when the order was made. The order was based on his ability to make $1,671 gross income per month. Contempt was issued and D was put under an order to show cause and D was served and directed to appear and show why he was not guilty of contempt. Testimony was that D was basically unemployed. When asked if he was getting a job his reply was that he was trying. D's counsel thought that once D raised the defense of inability to comply the burden of proof was on Ortiz (P) to show D had the ability to comply beyond a reasonable doubt and that in compelling D to work under threat of punishment constituted involuntary servitude. P's counsel argued that D had the burden of proof The court ruled for P and found that D was capable of work. D was found guilty of contempt. The only factual finding was that D had the ability to work. D appealed and the Court of Appeals ruled for D as forcing him to work would be involuntary servitude.


Issue: May criminal contempt sanctions be imposed on a child support obligor, without a present ability to pay support, who willfully refuses to seek employment that would allow the ability to pay support?


Holding: Yes Judgment affirmed.
The Court of Appeal annulled contempt order. Review was granted, superseding opinion of the Court of Appeal. The Supreme Court, held that: (1) trial court could constitutionally impose contempt sanction on parent who willfully failed to seek employment in order to pay child support; (2) inability to pay child support is affirmative defense which must be proven by preponderance of evidence by alleged contemner; (3) new rulings could not be applied retroactively.

Analysis: The court overruled its previous holding in the Todd decision that a parent who refused to work could not be held in contempt. Because petitioner contemnor father reasonably relied on case precedent, the court refused to apply its ruling retroactively and affirmed the appellate court's reversal of the trial court's finding of contempt. A court's power to impose criminal contempt penalties on a parent who willfully disables himself from complying with child support obligations is not unconstitutional as a proscription against involuntary servitude un-der the Thirteenth Amendment. Parental employment is not like peonage because the parent is not bound to any particular employer or employment