## Facts

- In a dissolution matter, Phillip William Feiock was subject to a child-support obligation for three children.
- A later action under the Uniform Reciprocal Enforcement of Support Act resulted in a temporary order requiring Feiock to pay $150 per month through the district attorney’s office.
- Feiock made no payments for approximately six months (September 1984 through February 1985).
- The district attorney initiated contempt proceedings under California Code of Civil Procedure § 1209.5, which provides that failure to comply with a support order is prima facie evidence of contempt.
- At the contempt hearing, the parties stipulated to the existence and validity of the support order and that Feiock was present when it was entered.
- The prosecution introduced payment-record evidence showing nonpayment, presented through a witness familiar with the office record-keeping system.
- Feiock testified and offered evidence aimed at showing inability to pay during the charged period.
- The trial court denied Feiock’s nonsuit motion, applied § 1209.5’s prima facie provision, found multiple counts of contempt, and imposed incarceration.
- After an earlier appellate decision granting habeas relief, the United States Supreme Court vacated and remanded in light of the distinction between civil and criminal contempt and the operation of burden shifting in contempt cases.
- On remand, Feiock again sought habeas corpus relief from the contempt incarceration.

## Issues

1. Whether the contempt adjudication should be treated as civil or criminal for due process purposes, given the nature of the sanction imposed.
2. Whether § 1209.5’s “prima facie evidence” provision operated as an unconstitutional mandatory presumption in a criminal contempt proceeding.
3. Whether inability to pay is an affirmative defense that the contemner must prove, or whether the prosecution must prove ability to pay beyond a reasonable doubt.

## Decision

- The Court of Appeal denied the petition for writ of habeas corpus and left the contempt judgment and incarceration order in effect.
- Applying the federal framework described by the United States Supreme Court on remand, the court treated the proceeding as criminal in character for due process analysis but found no due process violation in the way § 1209.5 was applied.
- The court construed § 1209.5 as allowing an inference of contempt from proof of a valid order and nonpayment, subject to the contemner’s opportunity to rebut.
- The court held that inability to pay functioned as an affirmative defense and that Feiock bore the burden to prove it; the trial court was entitled to reject his showing.
- Because the prosecution proved the order and noncompliance and Feiock did not establish inability to pay to the trial court’s satisfaction, continued confinement was not unlawful.

## Legal Principles

- In contempt proceedings for failure to comply with a support order, proof of a valid order and nonpayment may constitute prima facie evidence permitting an inference of contempt, so long as the contemner has a meaningful opportunity to rebut.
- For due process purposes, the validity of burden shifting in contempt turns on whether the presumption is mandatory or permissive and whether it effectively shifts the burden of persuasion on an element in a criminal contempt case.
- Under this decision, inability to pay may be treated as an affirmative defense placed on the contemner, rather than an element the prosecution must disprove beyond a reasonable doubt, where the prosecution first establishes the order and noncompliance.
- A contempt finding and incarceration for nonpayment may be upheld when the trial court rationally rejects the contemner’s evidence of inability to pay after the state proves nonpayment of a valid support order.

## Conclusion

The court upheld Feiock’s child-support contempt adjudication and incarceration, reasoning that § 1209.5’s prima facie provision operated as a rebuttable inference and that inability to pay could be assigned to the contemner as an affirmative defense without violating due process on the facts presented.


In re Feiock, 215 Cal. App. 3d 141, 263 Cal. Rptr. 437 (Cal. Ct. App. 1989)