## Facts

- In a custody and support case involving three children, the family court awarded the mother pendente lite attorney and expert fees based on the father’s need/ability-to-pay findings.
- On September 10, 1997, the court ordered the father to pay $2,898 in attorney’s fees and costs by November 10, 1997; the father was absent but represented by counsel, and a written order was served on his attorney.
- On November 19, 1997, the court ordered the father to pay $83,265 in attorney and expert fees in six installments through February 26, 1998; the father was again absent but represented by counsel, and a written order was served on his attorney.
- The court had found the father had a high ability to pay; he characterized himself as an extraordinarily high-income earner.
- The father did not pay as ordered and was adjudged guilty of seven counts of criminal contempt for willful disobedience of the fee orders, resulting in a jail sentence.
- The father sought habeas corpus relief, arguing the contempt findings rested on unconstitutional mandatory presumptions regarding his knowledge of the orders and his ability to pay.

## Issues

1. When the family court recently determined ability to pay in issuing pendente lite fee orders, must the prosecution prove ability to pay beyond a reasonable doubt as an element of criminal contempt for nonpayment?
2. In criminal contempt, did the trial court violate due process by using mandatory presumptions to establish the father’s knowledge of the orders and/or ability to pay?

## Decision

- The Court of Appeal denied habeas corpus relief and left the contempt judgments intact.
- Because the family court had already determined ability to pay when issuing the fee orders and the nonpayment occurred shortly thereafter, ability to pay was not an element of the contempt; inability to pay was an affirmative defense the father had to raise and prove.
- The trial court did not use an impermissible mandatory presumption to prove knowledge; it permissibly inferred knowledge from the circumstances, including service on and participation by the father’s attorney and the timing of the violations.

## Legal Principles

- Criminal contempt is punitive and triggers criminal-law protections, including proof beyond a reasonable doubt and limits on evidentiary shortcuts that would relieve the prosecution of that burden.
- In contempt for failure to pay family law obligations, when the underlying order includes a recent ability-to-pay determination, inability to pay is an affirmative defense; the contemnor bears the burden to raise and prove it.
- In criminal contempt, mandatory presumptions to establish an element are unconstitutional, but permissive inferences are permissible if rational and the factfinder remains free to accept or reject them.
- Service of an order on a party’s counsel and counsel’s participation can support a permissive inference that the party had knowledge of the order, especially where the violation follows shortly after issuance.

## Conclusion

The court upheld seven criminal contempt findings for nonpayment of pendente lite fees, holding that a prior, recent ability-to-pay determination removes ability to pay from the contempt elements (leaving inability to pay as an affirmative defense) and that knowledge may be established through rational permissive inferences rather than mandatory presumptions.


In re Ivey, 85 Cal. App. 4th 793, 102 Cal. Rptr. 2d 447 (Ct. App. 2000)