Final editing by Lou: August 1, 2000
APPELLATE COURT OF THE HOPI TRIBE
KEAMS CANYON, ARIZONA
|CAROL JOHNS||)||Case No.|
|)||OPINION AND ORDER|
Before SEKAQUAPTEWA, Chief Judge, and L0MAYESVA and ABBEY, Judges.
Factual and Procedural Background
On June 2, 1988 Carol and Leroy Lewis were divorced. Their divorce agreement provided, among other things, that Leroy would pay monthly child support of $75 per child until his two minor children turned eighteen. The amount appears to be based on the fact that Leroy was unemployed at the time. The amount was to be increased upon Leroy finding work. Under the divorce agreement, Leroy was to start making payments of $150 per month ($75 for each child) starting April 15, 1988. Leroy made two payments of $150 in April and May, 1988.
On May 17, 1989 Carol wrote Leroy stating that she had not received any child support payments for almost a year and that she believed that Leroy had become employed on February 6, 1989. On July 29, 1988 [Note: I think this is really supposed to be 1989. I'll check it out. KL], Leroy wrote the court and Carol saying that his unemployment compensation had run out and 1that he would no longer be able to make child support payments.
On July 20, 1989, Carol filed a petition for civil contempt, alleging, among other things, that Leroy violated the divorce agreement by not paying child support and that he owed $2455. The court issued an Order To Show Cause on Leroy to show why he should not be held in contempt of court.
On September 13, 1989, the court held a hearing to determine the amount of delinquent child support payments that Leroy owed Carol. It appears from the record that Leroy admitted that he did not make several payments after the May, 1988 payment. Carol argued that Leroy did not make any payments after the May, 1988 payment. After the hearing, the court issued an order stating that the burden of proof was on Carol "to show the specific months and the exact amount that are owed as and for back child support." The court found that Carol "failed to establish sufficient proof" to meet her burden.
Carol appeals claiming that she presented sufficient evidence as to the amount of back child support owed.
The question presented on appeal is who has the burden of proof when child support payments are in dispute and the court has issued an Order To Show Cause on the owing party. We hold that once a prima facie showing has been made that a party who owes child support has failed to comply with a valid court order, the burden of proof is on that party to show that he or she has complied with that court order.
A spouse attempting to recover a judgment for unpaid support or alimony has the burden of showing the amount due. But that burden may be met by showing the order to pay and the fact of nonpayment. Then, in order to avoid being held in contempt, the respondent has the burden of showing that he has paid the support or that he is unable to pay. Once appellant introduced the decree into evidence and testified about respondent's non-payment, respondent had the burden of proving that the payments had been made.
Placing the burden of proof on Leroy is consistent with Arizona law. Section 12-2454.D of the Arizona Revised Statutes provides that on "petition of the person entitled to receive child support, the court shall issue an order to show cause to the person obligated to pay child support to appear before the court to show cause why an assignment of the earnings, income, entitlements or other moneys of the person obligated should not be made."
Although there are no cases in Arizona that deal specifically with the question of who has the burden of proof when child support payments are disputed, this position is consistent with cases in other states. See e.g. Pirrie v. Pirrie, 831 S.W.2d 296, 298 (Tenn. App. 1992. Raymer v. Raymer, 752 S.W.2d 313, 314 (Ky. App. 1988).
Arizona contempt of court statutes ARS § 12-861, ARS §12-862.A place the burden of proof on the party who owes 3 money, "the court may order the person so charged to show cause why he should not be punished for such disobedience." Placing the burden of proof on the party who owes money is consistent with federal and supreme Court rulings on civil contempt. See United States v. Rylander, 460 U.S. 752 (1983). See Sidney v. MacDonald, 536 F.Supp. 420 (9th Cir. 1982).
Placing the burden on Leroy is also consistent with principles of fairness and logic. If Leroy made payments, he should have less difficulty producing documentary evidence that he did so. It is however, virtually impossible for Carol to demonstrate that payments were not made.
For the court's guidance, we point out that at the September 13, 1989 hearing, Carol made a prima facie showing that Leroy made no payments at all for thirteen months, from June 1988 to June 1989, and that the amount he owed for those months is $1950. 13 months x $150 per month = $1950. Therefore, as to these months, the burden is on Leroy to show that he did make those payments.
As to the months in which Leroy made only partial payments, Carol was unable to specify the exact amount Leroy owes. A prima facie showing requires that the exact amount owing be specified. Therefore, Carol did not make a prima facie showing as to those months. Unless she does so, the burden does not shift to Leroy to show that he made payments during those months. Each month should be considered separately.
Because the trial court mistakenly placed the burden on Carol this case must be REMANDED to trial court for a new hearing and order consistent with this opinion.
Emory Sekaquaptewa Date
Fred Lomayesva Date
Jay Abbey Date