## Facts

- A dissolution judgment required Brent N. Moss to pay child support for two children; the amount was based on imputed earning capacity despite his unemployment.
- The order was modified to $385 per month in semimonthly installments.
- Moss paid no support from July 1994 through mid-June 1995, accruing $5,210 in arrears.
- Tamara S. Ortiz, the custodial parent, initiated contempt proceedings for willful failure to pay.
- Evidence showed Moss did odd jobs, lived with his mother (who sometimes paid utilities), and at times lacked transportation and basic necessities; Ortiz testified she did not know whether he had money or the ability to pay.
- The trial court found Moss guilty of 24 counts of contempt, finding he had the ability to pay.
- The Court of Appeal annulled the contempt judgment based on then-prevailing readings of earlier authority suggesting contempt could not be imposed when nonpayment was tied to unemployment or failure to work.

## Issues

1. Whether contempt sanctions for nonpayment of child support are constitutionally permissible when the obligor’s asserted inability to pay results from a willful failure to seek and accept available employment.
2. In a child-support contempt proceeding, whether inability to comply is an affirmative defense and who bears the burden of proof.
3. Whether the contempt judgment against Moss could be sustained on this record given the governing law at the time of the contempt hearing.

## Decision

- The California Supreme Court held there is no constitutional bar to contempt when an obligor’s inability to pay is self-created through willful nonemployment.
- The court held inability to comply is an affirmative defense; the alleged contemner must prove inability by a preponderance of the evidence.
- The court disapproved prior authority to the extent it was read to prohibit contempt for child-support nonpayment based on theories of involuntary servitude or imprisonment for debt.
- The court nonetheless affirmed the annulment of Moss’s contempt judgment because applying the clarified rules to uphold the judgment would be unfair given the prior understanding of the law and the evidentiary posture of the case.

## Legal Principles

- Contempt for violating a child support order may be imposed when nonpayment stems from a willful failure to seek and accept employment reasonably available and suited to the obligor’s skills and ability.
- Such contempt sanctions punish willful disobedience of a court order, not mere poverty, and do not constitute unconstitutional involuntary servitude or imprisonment for debt in this context.
- Inability to comply with a child-support order is an affirmative defense in contempt proceedings, proven by the alleged contemner by a preponderance of the evidence.
- A showing of unemployment alone does not establish inability; the defense requires proof that compliance was not possible despite reasonable efforts to obtain suitable work.
- When a court’s clarification of contempt standards represents an unanticipated shift from prior understandings, due process and fairness concerns may limit retroactive application to uphold an existing contempt judgment.

## Conclusion

The court confirmed that child-support contempt may rest on willful nonemployment and that inability to pay is an affirmative defense borne by the obligor, but it left the specific contempt judgment annulled because the clarified framework could not fairly be applied to sustain Moss’s conviction on the record and legal expectations at the time.


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