CECIL HICKS, DISTRICT ATTORNEY FOR COUNTY OF ORANGE, CALIFORNIA, ACTING ON BEHALF OF ALTA SUE FEIOCK, PETITIONER V. PHILLIP WILLIAM FEIOCK No. 86-787 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the Court of Appeal of California, Fourth Appellate District, Division Three Brief for the United States as Amicus Curiae Supporting Petitioner TABLE OF CONTENTS 1@@ Question presented Interest of the United States Statement Summary of Argument Argument: In a civil contempt proceeding, the Due Process Clause permits a state to require that the defendant demonstrate his inability to comply with a previous court order A. The court of appeal erred in treating the instant civil contempt proceeding as if, for purposes of the Due Process Clause, it were a criminal prosecution B. It does not offend due process to place the burden on a civil contemnor to show a current inability to comply with a court order directing payment of child support Conclusion QUESTION PRESENTED In civil contempt proceedings for nonpayment of court-ordered child support, California law provides that prima facie evidence of contempt is established by proof that the delinquent parent had notice of the child-support order and failed to comply with it. The question presented is whether this California statute violates the Due Process Clause of the Fourteenth Amendment by shifting to the delinquent parent the burden to show a current inability to pay. INTEREST OF THE UNITED STATES The issue in this case is whether, in a civil contempt proceeding to compel payment of court-ordered child support, states may provide that formal notice of the support order and proof of noncompliance therewith constitute prima facie evidence of contempt, thereby placing the burden on the delinquent parent to show a current inability to comply with the support order. The California Court of Appeal has held that such a burden-shifting provision violates the Due Process Clause of the Fourteenth Amendment. The United States has a strong interest in the states' being allowed to employ such burden-shifting provisions to facilitate the collection of child-support payments from recalcitrant parents who defy valid court orders. Nonpayment of child support is a problem of national dimensions, causing a steady drain on federal resources devoted to social welfare programs. Over $3 billion in child support goes unpaid each year, and the Department of Health and Human Services (HHS) estimates that at least one-third of this sum, or more than $1 billion annually, ultimately comes out of the budget of the Aid to Families with Dependent Children (AFDC) program. The AFDC program, which Congress established in 1935 (Social Security Act, Tit. IV, Sections 401-406, 42 U.S.C. (& Supp. III) 601-676), is designed to provide financial assistance to needy families with children who have been deprived of parental care or support by the death, incapacity or "continued absence from the home" of a parent (42 U.S.C. (& Supp. III) 606(a)). About half of each AFDC payment is paid by the recipient's state; the other half is borne by the United States through a matching contribution (42 U.S.C. 603). By 1974, the problem of support-payment delinquency had reached the point where almost 25% of AFDC children were covered by support orders, but few of these orders were obeyed even though many absent parents had the ability to pay. See S. Rep. 93-1356, 93d Cong., 2d Sess. 42-44 (1974); 120 Cong. Rec. 38196-38198 (1974) (remarks of Rep. Griffiths). Congress concluded in 1974 that "(t)he problem of welfare in the United States is, to a considerable extent, a problem of the non-support of children by their absent parents" (S. Rep. 93-1356, supra, at 42). Congress believed that the AFDC program in particular had evolved into a publicly-funded substitute for unenforced parental support obligations. Among the remedies that Congress implemented to address this problem was a provision that requires an AFDC applicant (generally, the mother), as a condition of eligibility, to assign to the state any right to support that she or her children may possess (Social Services Amendments of 1974, Section 101(c)(5)(C), 42 U.S.C. 602(a)(26)(A)). /1/ The purpose of this provision was to relieve the mother of the burden of enforcing the abandoning father's child-support obligations, and to transfer that burden to the states with their greater resources and better collection techniques. See Sorenson v. Secretary of the Treasury, No. 84-1686 (Apr. 22, 1986), slip op. 1-2. From any amounts collected pursuant to such agreement, the state in turn reimburses the federal government "to the extent of its participation in the financing of the AFDC payment" (45 C.F.R. 304.26(a)). Congress has also taken steps to aid and encourage states in the enforcement of support orders. Child-support enforcement services are required in every state as a condition of federal matching funds for the state's AFDC program. 42 U.S.C. (Supp. III) 602(a)(27). Participating states are encouraged to enforce their existing laws and to adopt proven effective procedures to improve their support-recovery operations. These techniques include expedited procedures for establishing paternity and enforcing child-support obligations; wage withholding, liens and bonds to ensure future payments; and provision for withholding state income tax refunds to satisfy support arrearages. 42 U.S.C. (Supp. III) 666. Furthermore, HHS regulations require states to "maintain an effective system" to enforce child-support obligations, including the use of "(c)ontempt proceedings to enforce an extant court order" (45 C.F.R. 303.6). Pursuant to Title IV-D of the Social Security Act (42 U.S.C. (& Supp. III) 651 et seq.), the federal government underwrites 70% of the states' administrative costs for the establishment and enforcement of child-support orders, both for AFDC parents and for parents not receiving public assistance. Despite federal efforts to encourage the states to expand their child-support programs and to develop and use more efficient procedures to establish and enforce support orders, the percentage of paying cases remains low. In 1983, for example, of the four million women entitled to receive child support, only half received the full amount they were due. Bureau of the Census, U.S. Dep't of Commerce, Series P-23, No. 148, Child Support and Alimony: 1983, at 1. And in 1985, only 11% of AFDC cases handled by the states and 30.3% of non-AFDC cases produced a single payment of child support. 2 Office of Child Support Enforcement, HHS, Tenth Annual Report to Congress for the Period Ending September 30, 1985: Child Support Enforcement Statistics Fiscal Year 1985, at 11. Particularly problematic are cases such as the present one in which the delinquent parent is self-employed and has no wages or other obvious assets to attach. In those circumstances, the only practical procedure by which to enforce regular support payments is citation for contempt of court. As a result, almost every state has streamlined contempt procedures in child-support cases, permitting a finding of contempt based solely on proof that the delinquent parent had knowledge of a valid support order and failed to abide by it. The burden then shifts to the delinquent parent in these states to show a current inability to make the payments. The validity of all such state rules -- and hence the ability of the states to counter the still-widespread problem of nonpayment of support -- is accordingly at stake in this case. Effective enforcement of child-support orders could save the AFDC program over $1 billion each year. This savings would be accomplished by eliminating the need of many families for AFDC assistance altogether and by permitting reimbursement of the state and federal governments for funds expended on those families who must nevertheless resort to AFDC and who have assigned their support payments to the state. This money could then be recycled in the AFDC program and devoted to those most in need. STATEMENT 1. Respondent Phillip William Feiock and Alta Sue Feiock were divorced in California on January 19, 1976 (J.A. 7-8). Mrs. Feiock obtained custody of their three children, and respondent was ordered to make regular child-support payments (id. at 8). Mrs. Feiock and her three children subsequently moved to Ohio. When respondent failed to make any of the court-ordered support payments, Mrs. Feiock sought the assistance of her local child-support enforcement agency. Ohio thereupon initiated a petition under the Uniform Reciprocal Enforcement of Support Act (see J.A. 6). That petition was received in California by the Orange County District Attorney, petitioner here, who took charge of the case on behalf of Mrs. Feiock (id. at 3-6). Mrs. Feiock was listed as the "plaintiff" in the case (id. at 3). Respondent was summoned before the Orange County Superior Court on June 22, 1984. Following a hearing (see J.A. 9-14), the court ordered respondent to start making his child-support payments, but granted a temporary reduction to $150 per month in the amount due (id. at 15-17). During the eight-month period between June 22, 1984, and February 22, 1985, respondent made only two monthly payments. Because respondent was self-employed and maintained no bank accounts or other assets in his own name upon which an execution could be levied (id. at 4-11), the only practical enforcement mechanism for the support order was a civil contempt proceeding pursuant to Sections 1672 and 1209.5 of the California Code of Civil Procedure. Accordingly, the District Attorney, acting on behalf of Mrs. Feiock, filed an Order to Show Cause and Declaration for Civil Contempt (J.A. 18-20). On August 9, 1985, a civil contempt hearing was conducted in superior court. The District Attorney, acting on behalf of Mrs. Feiock, established a prima facie case of contempt under Section 1209.5 by demonstrating that respondent had been formally advised of his obligation to pay support as ordered by the court and that he had failed to make the support payments (J.A. 24-26). At that point, the District Attorney rested. Respondent then made a motion for nonsuit, arguing that Section 1209.5 was unconstitutional in that it presumed, rather than requiring Mrs. Feiock to prove, that respondent was currently able to pay child support. Respondent asserted that the statute had the effect of shifting to him the burden of proving his current inability to comply with the support order, in supposed violation of his due process rights. Id. at 26. The court rejected this argument (id. at 27). Following the denial of his motion for nonsuit, respondent took the stand and testified that he was financially unable to pay any child support (J.A. 27-34). Based on respondent's own testimony, the court found that respondent did have the financial ability to pay support for five of the months in which he had failed to do so (id. at 35). The court therefore found respondent in contempt for disobeying the court's order for those five periods (id. at 35-36, 40). The court sentenced respondent to five days on each count, to be served consecutively, for a total of 25 days. The court then suspended that sentence and placed respondent on three years' informal probation. The conditions of probation were that respondent discharge the arrearages in his child support at a specified rate and that he pay his future installments of child support on time. Id. at 36, 40. 2. Respondent filed a petition for writ of habeas corpus with the California Court of Appeal requesting that the superior court's judgment be set aside on the ground that his motion for nonsuit had been improperly denied. The court of appeal granted the writ. It held that Section 1209.5 created a "mandatory presumption" that respondent was able to pay the court-ordered support and thereby violated his due process rights by "reliev(ing) the prosecution from proving every element of the offense beyond a reasonable doubt." Pet. App. A6. The court noted that ability to pay is an essential element of the offense of contempt. "Ability to pay makes noncompliance wilful; it is not contempt if not wilful because of inability to pay" (Pet. App. A9). The court further stated that a contempt proceeding is a "quasi-criminal" proceeding in which every element of the offense must be proved beyond a reasonable doubt (ibid.). On the court's view, Section 1209.5 violated this stricture by creating a presumption that the defendant is able to make the payments. "Although rebuttable," the court stated, "the presumption actually shifts the burden of proof to the accused" on the element of ability to pay (id. at A8). Relying on this Court's decisions involving the use of mandatory presumptions in criminal prosecutions (Sandstrom v. Montana, 442 U.S. 510 (1979); Ulster County Court v. Allen, 442 U.S. 140 (1979)), and on a California Supreme Court case applying those decisions (People v. Roder, 33 Cal.3d 491, 658 P.2d 1302, 189 Cal.Rptr. 501 (1983)), the court of appeal concluded that a presumption shifting the burden of proof to a criminal defendant is unconstitutional "unless the basic fact proved * * * 'compels the inference of guilt beyond a reasonable doubt.'" Pet. App. A8 (quoting People v. Roder, 33 Cal.3d at 498 n.7, 658 P.2d at 1306, n.7, 189 Cal. Rptr. at 505 n.7 (emphasis in original)). The court acknowledged that "the basic fact proved" by the District Attorney here -- respondent's noncompliance with a valid court order of which he was aware -- suggested an inference that respondent was acting willfully, since the order to pay child support entailed a finding that he was able to pay that amount at the time the order was made. The court stated, however, that this inference was not inevitable because "financial circumstances change" and "(t)he inference of continuing ability to pay weakens with the passage of time" (Pet. App. A9). Under the Due Process Clause, the court concluded, "the Legislature may not take away this defense by imposing a mandatory presumption compelling a conclusion of guilt without independent proof of an ability to pay" (ibid.). Without adverting to the fact that respondent had taken the stand, and that his testimony as to his asserted inability to pay had been found incredible, the court of appeal held that "section 1209.5 establishes a mandatory presumption within the meaning of Ulster (County Court v. Allen, supra)," and that "section 1209.5 * * * is unconstitutional because the mandatory nature of the presumption lessens the prosecution's burden of proof." Pet. App. A8, A9-A10. /2/ The court of appeal therefore granted the writ of habeas corpus, holding that because of the unconstitutionality of Section 1209.5, the trial court should have granted respondent's "motion for judgment of acquittal" (Pet. App. A10). /3/ The court, however, did not strike down the statute. Rather, it held that, for future purposes, "section 1209.5 should be construed as allowing (only a) permissive inference" of ability to pay (id. at A10-A11). The California Supreme Court denied the state's petition for review, Justice Lucas dissenting (Pet. App. B1). On October 23, 1986, Justice O'Connor granted the State's application for a stay pending disposition of a petition for a writ of certiorari. Certiorari was granted on March 9, 1987. SUMMARY OF ARGUMENT The court of appeal erred in treating the instant civil contempt proceeding as if, for purposes of the Due Process Clause, it were a criminal prosecution. The character of the proceeding was remedial, and its purpose was to compel compliance with a valid court order. The conditional nature of the sentence respondent received was clearly designed to induce him to make future support payments, not to punish past nonpayment. It does not offend the Due Process Clause of the Fourteenth Amendment to place the burden on a civil contemnor to show a current inability to comply with a court order directing payment of child support. This Court's cases clearly establish the propriety of shifting the burden to the defendant once a prima facie case of contempt has been established. Such a burden-shifting device is essential to secure compliance with court orders, and almost every state in the country shifts the burden to the defendant to prove inability to comply with a child-support order in an effort to counter the widespread problem of non-compliance. ARGUMENT IN A CIVIL CONTEMPT PROCEEDING, THE DUE PROCESS CLAUSE PERMITS A STATE TO REQUIRE THAT THE DEFENDANT DEMONSTRATE HIS INABILITY TO COMPLY WITH A PREVIOUS COURT ORDER A. The Court Of Appeals Erred In Treating The Instant Civil Contempt Proceeding As If, For Purposes Of The Due Process Clause, It Were A Criminal Prosecution 1. In Shillitani v. United States, 384 U.S. 364, 368 (1966), this Court noted that the distinction between civil and criminal contempt turns on "the character and purpose of these actions." The character of a civil proceeding is remedial, and its purpose is to compel compliance with a valid court order. Civil contempt is "intended to operate in a prospective manner -- to coerce, rather than punish" (id. at 370). Criminal contempt, by contrast, is "a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both." Bloom v. Illinois, 391 U.S. 194, 201 (1968). In other words, criminal contempt constitutes punishment for "'doing what ha(s) been prohibited'" (Shillitani, 384 U.S. at 368, quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 449 (1911)), whereas civil contempt is "a sanction to enforce compliance with an order of the court." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). The purpose of civil contempt is "remedial," and "it matters not with what intent the defendant did the prohibited act." Ibid. (footnote omitted). The difference between civil and criminal contempt is shown most clearly in the purpose behind the sentence imposed. In Shillitani, the defendants were each sentenced to two years' imprisonment. The sentences, however, were expressly conditioned to last only so long as the defendants continued to defy a court order that they testify before a grand jury (384 U.S. at 365). This Court acknowledged that "any imprisonment, of course, has punitive and deterrent effects," but held that imprisonment "must be viewed as remedial if the court conditions release upon the contemnor's willingness to testify." 384 U.S. at 370. Since the purpose of the sentence in Shillitani was "to obtain answers to questions for the grand jury" (ibid.) and not to punish or deter misconduct through imposition of an unconditional jail term, the Court concluded that the proceedings were civil and, hence, that the usual constitutional safeguards attendant upon a criminal prosectuion were not required. The contempt proceedings in this case were clearly civil in character and purpose. The District Attorney brought this action on behalf of Mrs. Feiock under Sections 1672 and 1209.5 of the California Code of Civil Procedure. The former Section is the general civil contempt provision, and the latter defines the elements of civil contempt in the context of nonpayment of child support. The two Sections together form a coercive device to compel payment of child support, not to punish nonpayment. /4/ They create a perpetually available stick to coax reluctant former spouses into payment, and that is precisely how the trial court used the provisions in this case. By suspending respondent's sentence and placing him on probation, expressly conditioned upon his meeting his support obligation, the court gave respondent a continuing incentive to pay child support. The court used the civil contempt proceeding to induce respondent to conform his future behavior to the court's order. It did not punish him for past nonpayment. The conditional nature of this sentence clearly demonstrates the civil nature of the contempt proceeding. /5/ 2. The fact that the court of appeal characterized the proceeding as "quasi-criminal" does not change this analysis. The same terminology was applied by the lower courts in Shillitani, but this Court looked beyond the label to the "character and purpose" of the proceeding (384 U.S. at 368, 369). "The fact that both the District Court and the Court of Appeals called (the defendants') conduct 'criminal contempt' does not disturb our conclusion. Courts often speak in terms of criminal contempt and punishment for remedial purposes." Ibid. Nor, as respondent apparently suggests (Br. in Opp. 3-8), does the label affixed by the court of appeal somehow provide an adequate and independent state ground for the decision below, thereby insulating it from this Court's review. The court of appeal plainly decided a federal constitutional question, purporting to apply this Court's precedents construing the Fourteenth Amendment's Due Process Clause to hold a state statute unconstitutional. The demands that the Due Process Clause places upon a contempt proceeding, however, depend upon the nature and purpose of that proceeding, not upon the label affixed to it by the state court. /6/ Quite obviously, a state court could not insulate what was at bottom a criminal proceeding from the demands of the Federal Constitution by labelling the proceeding "civil." Similarly here, the court of appeal erred -- and erred as a matter of federal constitutional law -- in subjecting this civil contempt proceeding to exaggerated due process scrutiny by the contrivance of labelling it "quasi-criminal." Even if respondent is correct that California law affords "far greater protections then th(ose) afforded by the Federal government or other states with respect to civil contempt" (Br. in Opp. 3), that fact does not alter the federal constitutional requirements applicable to such proceedings. The states are free, by state statute or constitution, to ge beyond the requirements of the Federal Constitution in providing protections to civil contemnors. But the addition of ancillary procedural protections to a civil contempt proceeding does not transform that proceeding into a criminal prosecution for purposes of the Fourteenth Amendment's Due Process Clause. B. It Does Not Offend Due Process To Place The Burden On A Civil Contemnor To Show A Current Inability To Comply With A Court Order Directing Payment Of Child Support In United States v. Rylander, 460 U.S. 752 (1983), this Court held that an alleged civil contemnor bears the burden of showing a current inability to comply with a court order. "'(A) contempt proceeding,'" the Court explained, "'does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.'" Id. at 756 (quoting Maggio v. Zeitz, 333 U.S. 56, 69 (1948)). In Rylander, the order alleged to have been disobeyed required the defendant to produce records in his possession, and the Court stated that there was a "presumption of continuing possession arising from the enforcement order" (460 U.S. at 760). The Court noted that a contemnor "(i)n a civil contempt proceeding * * * may assert a present inability to comply with the order in question" (id. at 757 (emphasis in original)). "It is settled, however, that in raising this defense the defendant has the burden of production." Id. at 757, 760-761. With one caveat, the constitutionality of Section 1209.5 follows a fortiori from Rylander. That caveat concerns the distinction between a "burden of production" and a "burden of persuasion." In Ulster County Court v. Allen, 442 U.S. at 157-158 n.16, this Court distinguished between two sorts of mandatory presumptions -- "presumptions that merely shift the burden of production to the defendant, following the satisfaction of which the ultimate burden of persuasion returns to the prosecution," and "presumptions that entirely shift the burden of proof to the defendant." Rylander placed upon the civil contemnor only a "burden of production," a burden of "adduc(ing) evidence as to his present inability to comply with (the court) order" (460 U.S. at 757, 761). The court of appeal in the instant case, by contrast, characterized Section 1209.5 as "shifting the burden of proof to the accused" (Pet. App. A8). /7/ The California court of appeal was likely wrong, as a matter of California law, in its construction of Section 1209.5. /8/ Be that as it may, however, as a matter of federal constitutional law neither a presumption that shifts the burden of production to the alleged contemnor nor one that shifts the burden of persuasion offends due process. A number of this Court's cases have held that the burden of persuasion may properly be placed on the alleged contemnor to show a current inability to comply with the court's order. See, e.g., McPhaul v. United States, 364 U.S. 372, 379 (1960); Maggio v. Zeitz, 333 U.S. at 75-76; Oriel v. Russell, 278 U.S. 358, 366 (1929). Indeed, the Court has so held even in the context of a criminal contempt proceeding for failure to produce records in response to a subpoena. United States v. Fleischman, 339 U.S. 349, 362-363 (1950). /9/ Some such burden-shifting device is clearly necessary to secure compliance with judicial support decrees. The alternative, as the court of appeal frankly acknowledged, is to hold that "despite the continuing obligation to comply, (the defendant) may literally sit on his hands, and defend any contempt allegation by relying on the prosecution's burden of proof: its burden to affirmatively show, beyond a reasonable doubt, his ability to comply with the order, to wit, his ability to pay." Pet. App. A9 (original quotation marks omitted). Allowing a delinquent father to "sit on his hands" in this way would cripple efforts to enforce child-support orders, given the large volume of such cases and the inherent difficulty of proving that the defendant is able to pay. As the Supreme Court of Idaho has noted (In re Martin, 76 Idaho 179, 187, 279 P.2d 873, 878 (1955)): In such cases the burden must necessarily rest upon the defaulting father to show his inability to comply. The mother, acting for the children, would in most cases, be unable to make any satisfactory showing on that issue. Ordinarily the facts are not available to her. To require her to allege and prove the ability of the recalcitrant father to support his children would consequently result in injustice. Almost every state has recognized that in contempt proceedings for failure to pay child support, it is necessary to shift the burden to the defendant to demonstrate a current inability to pay. In a few states, only the burden of production shifts. /10/ In the vast majority of states, however, the burden of persuasion shifts to the defendant. /11/ As we have noted, the California courts have not yet definitively resolved whether Section 1209.5 shifts the burden of persuasion or the burden of production. In practical effect, it probably makes little difference which view is adopted, and in either event the statute is constitutional. If a delinquent parent thinks that his child-support obligation is excessive or for any other reason believes that he should be releived from the burden of supporting his children, then it is his duty to petition the appropriate court for modification of the order or for a stay of enforcement. Having failed to take any initiative on his own to obtain such relief, he cannot be suffered to stand silent when haled before the court to answer for his failure to comply with its order. A court order to pay child support must not be "treated as an invitation to a game of hare and hounds, in which the (parent) must (pay) only if cornered at the end of that chase." United States v. Bryan, 339 U.S. 323, 331 (1950). CONCLUSION The judgment of the court of appeal should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General ALBERT G. LAUBER, JR. Deputy Solicitor General MICHAEL K. KELLOGG Assistant to the Solicitor General MICHAEL JAY SINGER CONSTANCE A. WYNN Attorneys RONALD E. ROBERTSON General Counsel Department of Health and Human Services MAY 1987 /1/ Certain aspects of the AFDC assignment provision are before this Court in Bowen v. Gilliard, No. 86-509 (argued Apr. 22, 1987). /2/ Although the court of appeal did not explicitly indicate whether it was basing its holding on the federal or the state Constitution, the court's reasoning makes it clear that it was referring to the former. As Justice O'Connor noted in granting a stay (No. A-288 (Oct. 23, 1986)), the key elements of the court's reasoning (Pet. App. A7, A8, A10) were derived from an interpretation of this Court's decisions in Ulster County Court v. Allen, supra and Sandstrom v. Montana, supra; both of those decisions, of course, involved the Due Process Clause of the Fourteenth Amendment. See 442 U.S. at 147-148 & n.5; id. at 513, 524. The principal California decision upon which the court of appeal relied -- People v. Roder, supra -- was likewise based explicitly on this Court's decisions construing the Due Process Clause of the Fourteenth Amendment. See 658 P.2d at 1305-1307, 1309-1311 (cited in Pet. App. A6, A7, A8, A9). /3/ The court of appeal incorrectly characterized this motion. A motion for judgment of acquittal is made in the context of a criminal case. The contempt proceeding in this case was brought under the California Code of Civil Procedure and respondent accordingly made a "motion for nonsuit" (J.A. 26). /4/ Section 270 of the California Criminal Code contains a separate provision defining the crime of nonpayment of support. The crime of nonpayment must be prosecuted by the state. By contrast, a civil contempt proceeding may be initiated by the aggrieved spouse and need not involve the state at all. In the instant case, the District Attorney was merely acting, as he was authorized to do by the Uniform Reciprocal Enforcement of Support Act, on behalf of Mrs. Feiock, the named plaintiff, who lived in Ohio at the time. /5/ The nonpunitive, coercive nature of respondent's sentence is further illustrated by statements the court made to him at the time of sentencing. The court indicated that it was still willing to listen if respondent encountered future financial difficulties and would not necessarily respond by immediately sending him to jail for nonpayment. "If you get into difficulty, don't sit. Come to court * * * . If you are in trouble, get in here, let the court know about it." J.A. 36. /6/ In any event, the California Supreme Court purports to follow this Court's precedent in distinguishing between civil and criminal contempt, focusing on the character and purpose of the proceeding. See Mitchell v. Superior Court, 729 P.2d 212, 221-222, 232 Cal. Rptr. 900, 909-910 (1987); People v. Derner, 227 Cal. Rptr. 344, 346 (Ct. App. 1986). /7/ Although the phrase "burden of proof" is ambiguous -- "burden of proof" may mean either "burden of production" or "burden of persuasion" (see McCormick on Evidence Section 336 (2d ed. 1972)) -- the court of appeal seems to have intended the latter meaning. Indeed, most state courts appear to use the expression "burden of proof" in the latter sense (see cases cited in note 11, infra). /8/ By its terms, Section 1209.5 purports only to set out the elements that constitute "prima facie evidence of a contempt of court" in the context of failure to obey a valid child-support order. The statute makes no mention of where the ultimate burden of persuasion lies and other California courts have read Section 1209.5 as shifting only the burden of production to the defendant. See, e.g., Lyons v. Municipal Court, 75 Cal.App.3d 829, 838, 142 Cal. Rptr. 449, 452 (Ct. App. 1977) (Section 1209.5 "merely specifies the facts that, if proven, shall constitute prima facie evidence of contempt of a child support order, thus shifting the burden of producing evidence upon the contemnor"); Oliver v. Superior Court, 197 Cal.App.2d 237, 242, 17 Cal. Rptr. 474, 476-477 (Ct. App. 1961) ("The effect of (Section 1209.5) is to place the burden of going forward upon the contemn(o)r. It does not shift the burden of proof to him."). The court of appeal below did not acknowledge this contrary precedent, and apparently failed to recognize that there is a question as to the proper reading of the statute. Indeed, the court failed even to notice that the trial court read the statute as shifting only the burden of production and so applied it in this case. In denying respondent's motion for a nonsuit, the superior court stressed that Section 1209.5 only "shift(s) the burden over to the defendant to go forward." J.A. 27 (emphasis added). Once respondent did go forward by testifying in his own behalf, the court then relied on respondent's own testimony in finding that he did have an ability to make five of the monthly support payments. Id. at 34-38. The trial court did not rely for its ultimate finding of facts upon any presumption contained in Section 1209.5. Rather, the trial court found that "the evidence there is sufficient to show that (respondent) was in contempt for those five periods," whereas respondent "didn't have the ability" to pay during the other months at issue, with the result that the contempt charges for those other months "will be dismissed" (J.A. 35). In light of the fact that the trial court interpreted and applied Section 1209.5 in much the same way that the court of appeal said that the statute must be read in future cases -- viz., as creating a "permissive inference of wilful failure to comply in spite of an ability to pay" (Pet. App. A10-A11) -- it is unclear why the court of appeal found it necessary to annul the judgment of contempt against respondent. Even under its erroneous application of misunderstood constitutional principles to a misconstrued statute, the judgment of contempt should have been upheld. /9/ The Court's decision in Fleischman indicates that even if the court of appeal were correct, for purposes of the Due Process Clause, in characterizing the instant action as a criminal prosecution, the burden-shifting presumption in Section 1209.5 would still be constitutional. There is no reason to believe that the viability of Fleischman has been undermined by the Court's subsequent cases. Indeed, in Martin v. Ohio, No. 85-6461 (Feb. 25, 1987), this Court recently upheld a conviction for aggravated murder in which the burden was placed on the defendant, who claimed self-defense, to prove her affirmative defense by a preponderance of the evidence. Under Ohio criminal law, an affirmative defense for which the defendant bears the burden of proof is one involving "an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence." Ohio Rev. Code Ann. Section 2901.05(C)(2) (Page 1982) (quoted in Martin v. Ohio, slip op. 1). Similarly here, under California child-support law, the alleged inability of a recalcitrant husband to make support payments is "an excuse or justification peculiarly within (his) knowledge," and the legislature can properly place upon him a burden "to adduce supporting evidence" as to his affirmative defense. /10/ See, e.g., Bowen v. Bowen, 471 So.2d 1274, 1278-1279 (Fla. 1985); Skinner v. Ruigh, 351 N.W.2d 182, 185 (Iowa 1984); Coleman v. Coleman, 664 P.2d 1155, 1157 (Utah 1983) (alimony). /11/ See, e.g., Johansen v. State, 491 P.2d 759, 766 (Alaska 1971); Leslie v. Leslie, 174 Conn. 399, 401-403, 389 A.2d 747, 749 (1978); Smith v. Smith, 427 A.2d 928, 932 (D.C. 1981); In re Martin, 76 Idaho at 187, 279 P.2d at 878; In re Marriage of Logston, 103 Ill. 2d 266, 284-286, 469 N.E.2d 167, 175 (1984) (alimony); Linton v. Linton, 166 Ind. App. 409, 421-423, 336 N.E.2d 687, 695 (1975); Brayfield v. Brayfield, 175 Kan. 337, 341-342, 264 P.2d 1064, 1068 (1953) (alimony); Dalton v. Dalton, 367 S.W.2d 840, 842 (Ky. Ct. App. 1963); Rutherford v. Rutherford, 296 Md. 347, 355-357, 464 A.2d 228, 233 (1983); Hopp v. Hopp, 279 Minn., 170, 175-176, 156 N.W.2d 212, 217 (1968); Clements v. Young, 481 So.2d 263, 271 (Miss. 1985); Blair v. Blair, 600 S.W.2d 143, 145 (Mo. 1980) (alimony and visitation rights); State v. District Court, 122 Mont. 76, 80-81, 199 P.2d 272, 274 (1948) (alimony); Bond v. Bond, 16 N.J. Super. 83, 84-86, 83 A.2d 794, 795 (App. Div. 1951); Hodous v. Hodous, 76 N.D. 392, 401, 36 N.W.2d 554, 560 (1949) (alimony); Rossen v. Rossen, 2 Ohio App.2d 381, 384, 208 N.E.2d 764, 767 (1964) (divorce settlement); Johnson v. Johnson, 319 P.2d 1107, 1108 (Okla. 1957); Svehaug v. Svehaug, 16 Or.App. 151, 153-155, 517 P.2d 1073, 1075 (1974); Barrett v. Barrett, 470 Pa. 253, 263-264, 368 A.2d 616, 621 (1977); Thomerson v. Thomerson, 387 N.W.2d 509, 513 (S.D. 1986); Leonard v. Leonard, 207 Tenn. 609, 614-616, 341 S.W.2d 740, 743 (1960) (alimony); Ex parte Padfield, 154 Tex. 253, 259-260, 276 S.W.2d 247, 251 (1955); Spabile v. Hunt, 134 Vt. 332, 333-335, 360 A.2d 51, 52 (1976); Branch v. Branch, 144 Va. 244, 248-251, 132 S.E. 303, 305 (1926).