In The

Supreme Court of the United States

District Attorney for County of Orange, California, Acting of Behalf of Feiock



Decided April 27, 1988

Justice O’Connor, Dissenting

Topic: Criminal Procedure*Court vote: 5–3
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Joining O'Connor opinion: Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA
Citation: 485 U.S. 624 Docket: 86–787Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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This case concerns a contempt proceeding against a parent who repeatedly failed to comply with a valid court order to make child support payments. In my view, the proceeding is civil as a matter of federal law. Therefore, the Due Process Clause of the Fourteenth Amendment does not prevent the trial court from applying a legislative presumption that the parent remained capable of complying with the order until the time of the contempt proceeding.


The facts of this case illustrate how difficult it can be to obtain even modest amounts of child support from a noncustodial parent. Alta Sue Adams married respondent Phillip William Feiock in 1968. The couple resided in California and had three children. In 1973, respondent left the family. Mrs. Feiock filed a petition in the Superior Court of California for the County of Orange seeking dissolution of her marriage, legal custody of the children, and child support. In January, 1976, the court entered an interlocutory judgment of dissolution of marriage, awarded custody of the children to Mrs. Feiock, and ordered respondent to pay child support beginning February 1, 1976. The court ordered respondent to pay $35 per child per month for the first four months, and $75 per child per month starting June 1, 1976. The order has never been modified.

After the court entered a final judgment of dissolution of marriage, Mrs. Feiock and the children moved to Ohio. Respondent made child support payments only sporadically, and stopped making any payments by December, 1982. Pursuant to Ohio's enactment of the Uniform Reciprocal Enforcement of Support Act (URESA), Mrs. Feiock filed a complaint in the Court of Common Pleas of Stark County, Ohio. See Ohio Rev.Code Ann. § 3115.09(B) (1980). The complaint recited that respondent was obliged to pay $225 per month in support, and that respondent was $2,300 in arrears. The Ohio court transmitted the complaint and supporting documents to to the Superior Court of California for the County of Orange, which had jurisdiction over respondent. Petitioner, the Orange County District Attorney, prosecuted the case on behalf of Mrs. Feiock in accordance with California's version of URESA. See Cal.Civ.Proc.Code Ann. § 1670 et seq. (West 1982).

After obtaining several continuances, respondent finally appeared at a hearing before the California court on June 22, 1984. Respondent explained that he had recently become a partner in a flower business that had uncertain prospects. The court ordered respondent to pay $150 per month on a temporary basis, although it did not alter the underlying order. Payments were to begin July 1, 1984.

Respondent made payments only for August and September. Respondent appeared in court three times thereafter, but never asked for a modification of the order. Eventually, the Orange County District Attorney filed Orders to Show Cause and Declarations of Contempt alleging nine counts of contempt based on respondent's failure to make nine of the $150 support payments. At a hearing held August 9, 1985, the District Attorney invoked Cal.Civ.Proc.Code Ann. § 1209.5 (West 1982), which says:

When a court of competent jurisdiction makes an order compelling a parent to furnish support... for his child,... proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court.

In an effort to overcome this presumption, respondent testified regarding his ability to pay at the time of each alleged act of contempt. The court found that respondent had been able to pay five of the missed payments. Accordingly, the court found respondent in contempt on five of the nine counts and sentenced him to 5 days in jail on each count, to be served consecutively, for a total of 25 days. The court suspended execution of the sentence and placed respondent on three years' informal probation on the conditions that he make monthly support payments of $150 starting immediately and additional payments of $50 per month on the arrearage starting October 1, 1985.

Respondent filed a petition for a writ of habeas corpus in the California Court of Appeal, where he prevailed on his argument that § 1209.5 is unconstitutional as a mandatory presumption shifting to the defendant the burden of proof of an element of a criminal offense. That is the argument that the Court confronts in this case. In my view, no remand is necessary because the judgment below is incorrect as a matter of federal law.


The California Court of Appeal has erected a substantial obstacle to the enforcement of child support orders. As petitioner vividly describes it, the judgment turns the child support order into "a worthless piece of scrap." Brief for Petitioner 47. The judgment hampers the enforcement of support orders at a time when strengthened enforcement is needed.

The failure of enforcement efforts in this area has become a national scandal. In 1983, only half of custodial parents received the full amount of child support ordered; approximately 26% received some lesser amount, and 24% received nothing at all.

Brief for Women's Legal Defense Fund et al. as Amici Curiae 26 (footnote omitted). The facts of this case illustrate how easily a reluctant parent can evade a child support obligation. Congress recognized the serious problem of enforcement of child support orders when it enacted the Child Support Enforcement Amendments of 1984, Pub.L. 98-378, 98 Stat. 1305. S.Rep. No. 98-387, pp. 5-6 (1984); H.R.Rep. No. 98-527, pp. 30, 49 (1983). The California Legislature responded to the problem by enacting the presumption described in § 1209.5. Now, says petitioner, the California Court of Appeal has sabotaged the California Legislature's effort.

Contempt proceedings often will be useless if the parent seeking enforcement of valid support orders must prove that the obligor can comply with the court order. The custodial parent will typically lack access to the financial and employment records needed to sustain the burden imposed by the decision below, especially where the noncustodial parent is self-employed, as is the case here. Serious consequences follow from the California Court of Appeal's decision to invalidate California's statutory presumption that a parent continues to be able to pay the child support previously determined to be within his or her means.

Petitioner asks us to determine as a matter of California law that inability to comply with a support order is an affirmative defense to a contempt charge, so that the burden of persuasion may be placed on the contemnor under Martin v. Ohio, 480 U. S. 228 (1987). Petitioner also contends that the Court of Appeal erred in supposing that § 1209.5 shifts the burden of persuasion, rather than merely the burden of production, citing Lyons v. Municipal Court, 75 Cal.App.3d 829, 838, 142 Cal.Rptr. 449, 452 (1977); Oliver v. Superior Court, 197 Cal.App.2d 237, 242, 17 Cal.Rptr. 474, 476-477 (1961); 4A J. Goddard, California Practice: Family Law Practice § 686 (3d ed.1981);14 Cal.Jur. 3d Contempt §§ 32, 71 (1974); and 6 B. Within, Summary of California Law, Parent and Child § 137 (8th ed.1974). But the interpretation of California law is the province of California courts. I agree with the majority that, for purposes of this decision, we should assume that the California Court of Appeal correctly determined these matters of state law. Martin v. Ohio, supra; United Gas Public Service Co. v. Texas, 303 U. S. 123, 303 U. S. 139 (1938). If the Court of Appeal was in error, the California courts may correct it in future cases.

The linchpin of the Court of Appeal's opinion is its determination that the contempt proceeding against respondent was criminal in nature. The court applied what it understood are the federal due process standards for mandatory evidentiary presumptions in criminal cases. See Ulster County Court v. Allen, 442 U. S. 140, 442 U. S. 167 (1979) (mandatory presumptions are impermissible unless "the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt"); Sandstrom v. Montana, 442 U. S. 510, 442 U. S. 523 -524 (1979). This Court has recognized, by contrast, that civil contempt proceedings do not require proof beyond a reasonable doubt, and that the rules governing use of presumptions differ accordingly. In the civil contempt context, we have upheld a rule that shifts to the contemnor the burden of production on ability to comply, United States v. Rylander, 460 U. S. 752, 460 U. S. 757 (1983), and we have recognized that the contemnor may bear the burden of persuasion on this issue as well, Maggio v. Zeitz, 333 U. S. 56, 333 U. S. 75 -76 (1948). If the contempt proceeding in this case may be characterized as civil in nature, as petitioner urges, then, under our precedents, the presumption provided in Cal.Civ.Proc.Code Ann. § 1209.5 (West 1982) would not violate the Due Process Clause.

The characterization of a state proceeding as civil or criminal for the purpose of applying the Due Process Clause of the Fourteenth Amendment is itself a question of federal law. Allen v. Illinois, 478 U. S. 364 (1986). The substance of particular contempt proceedings determines whether they are civil or criminal, regardless of the label attached by the court conducting the proceedings. See Shillitani v. United States, 384 U. S. 364, 384 U. S. 368 -370 (1966); Penfield Co. v. SEC, 330 U. S. 585, 330 U. S. 590 (1947); Nye v. United States, 313 U. S. 33, 313 U. S. 42 -43 (1941); Lamb v. Cramer, 285 U. S. 217, 285 U. S. 220 -221 (1932); Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 441 -443 (1911). Civil contempt proceedings are primarily coercive; criminal contempt proceedings are punitive. As the Court explained in Gompers:

The distinction between refusing to do an act commanded -remedied by imprisonment until the party performs the required act; and doing an act forbidden -punished by imprisonment for a definite term, is sound in principle and generally, if not universally, affords a test by which to determine the character of the punishment.

221 U.S. at 221 U. S. 443. Failure to pay alimony is an example of the type of act cognizable in an action for civil contempt. Id. at 221 U. S. 442.

Whether a particular contempt proceeding is civil or criminal can be inferred from objective features of the proceeding and the sanction imposed. The most important indication is whether the judgment inures to the benefit of another party to the proceeding. A fine payable to the complaining party and proportioned to the complainant's loss is compensatory and civil. United States v. Mine Workers, 330 U. S. 258, 330 U. S. 304 (1947). Because the compensatory purpose limits the amount of the fine, the contemnor is not exposed to a risk of punitive sanctions that would make criminal safeguards necessary. By contrast, a fixed fine payable to the court is punitive and criminal in character.

An analogous distinction can be drawn between types of sentences of incarceration. Commitment to jail or prison for a fixed term usually operates as a punitive sanction because it confers no advantage on the other party. Gompers, supra, at 221 U. S. 449. But if a contemnor is incarcerated until he or she complies with a court order, the sanction is civil. Although the imprisonment does not compensate the adverse party directly, it is designed to obtain compliance with a court order made in that party's favor.

When the [contemnors] carry 'the keys of their prison in their own pockets,' the action 'is essentially a civil remedy designed for the benefit of other parties, and has quite properly been exercised for centuries to secure compliance with judicial decrees.'

Shillitani, supra, at 384 U. S. 368 (citations omitted).


Several peculiar features of California's contempt law make it difficult to determine whether the proceeding in this case was civil or criminal. All contempt proceedings in California courts are governed by the same procedural rules. Cal.Civ.Proc.Code Ann. §§ 1209-1222 (West 1982 and Supp.1988); In re Morris, 194 Cal.63, 67, 227 P. 914, 915 (1924); Wright, Byrne, Haakh, Westbrook, & Wheat, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167, 180 (1955). Because state law provides that defendants in civil contempt proceedings are entitled to most of the protections guaranteed to ordinary criminal defendants, the California courts have held that civil contempt proceedings are quasi-criminal under state law. See, e.g., Ross v. Superior Court, 19 Cal.3d 899, 913, 569 P.2d 727, 736 (1977); Culver City v. Superior Court, 38 Cal.2d 535, 541-542, 241 P.2d 258, 261-262 (1952); In re Martin, 71 Cal.App.3d 472, 480, 139 Cal.Rptr. 451, 455-456 (1977). Therefore, indications that the California Superior Court conducted respondent's hearing as a criminal proceeding do not conclusively demonstrate for purposes of federal due process analysis that respondent was tried for criminal contempt.

Certain formal aspects of the proceeding below raise the possibility that it involved criminal contempt. The orders to show cause stated that "[a] contempt proceeding is criminal in nature" and that a violation would subject the respondent to "possible penalties." App. 18, 21. The orders advised respondent of his right to an attorney. Ibid. During the hearing, the trial judge told respondent that he had a constitutional right not to testify. Id. at 27. Finally, the judge imposed a determinate sentence of five days in jail for each count of contempt, to be served consecutively. See Cal.Civ.Proc.Code Ann. § 1218 (West 1982) (contempt may be punished by a fine not exceeding $500, or imprisonment not exceeding five days, or both); cf. Cal.Civ.Proc.Code Ann. § 1219 (West 1982) (contempt may be punished by imprisonment until an act is performed, if the contempt is the omission to perform the act).

Nevertheless, the substance of the proceeding below and the conditions on which the sentence was suspended reveal that the proceeding was civil in nature. Mrs. Feiock initiated the underlying action in order to obtain enforcement of the child support order for the benefit of the Feiock children. The California District Attorney conducted the case under a provision of the URESA that authorizes him to act on Mrs. Feiock's behalf. Cal.Civ.Proc.Code Ann. § 1680 (West 1982). As the very caption of the case in this Court indicates, the District Attorney is acting on behalf of Mrs. Feiock, not as the representative of the State of California in a criminal prosecution. Both of the provisions of California's enactment of the URESA that authorize contempt proceedings appear in a chapter of the Code of Civil Procedure entitled "Civil Enforcement." Id. §§ 1672, 1685. It appears that most States enforce child and spousal support orders through civil proceedings like this one, in which the burden of persuasion is shifted to the defendant to show inability to comply. J. Atkinson, Modern Child Custody Practice 556 (1986); H. Krause, Child Support in America 65 (1981); Annot., 53 A.L.R.2d 591, 607-616 (1957 and Supp.1987).

These indications that the proceeding was civil are confirmed by the character of the sanction imposed on respondent. The California Superior Court sentenced respondent to a fixed term of 25 days in jail. Without more, this sanction would be punitive, and appropriate for a criminal contempt. But the court suspended the determinate sentence and placed respondent on three years' informal probation on the conditions that he comply with the support order in the future and begin to pay on the arrearage that he had accumulated in the past. App. 40. These special conditions aim exclusively at enforcing compliance with the existing child support order.

Our precedents indicate that such a conditional sentence is coercive, rather than punitive. Thus in Gompers, we observed that civil contempt may be punished by an order that "the defendant stand committed unless and until he performs the affirmative act required by the court's order." 221 U.S. at 221 U. S. 442 (emphasis added). In Shillitani, we decided that civil contempt could be punished by a prison sentence fixed at two years if it included a proviso that the contemnor would be released as soon as he complied with the court order. 384 U.S. at 384 U. S. 365. In this case, if respondent performs his obligations under the original court order, he can avoid going to jail at all. Like the sentence in Shillitani, respondent's prison sentence is coercive, rather than punitive, because it effectively "conditions release upon the contemnor's willingness to [comply]." Id. at 384 U. S. 370.

It is true that the order imposing the sentence does not expressly provide that, if respondent is someday incarcerated and if he subsequently complies, he will be released immediately. The parties disagree about what will happen if this contingency arises, Tr. of Oral Arg. 44, 45-47, and there is no need to address today the question whether the failure to grant immediate release would render the sanction criminal. In the case before us, respondent carries something even better than the "keys to the prison" in his own pocket: as long as he meets the conditions of his informal probation, he will never enter the jail.

It is critical that the only conditions placed on respondent's probation, apart from the requirement that he conduct himself generally in accordance with the law, are that he cure his past failures to comply with the support order and that he continue to comply in the future. * The sanction imposed on respondent is unlike ordinary criminal probation because it is collateral to a civil proceeding initiated by a private party, and respondent's sentence is suspended on the condition that he comply with a court order entered for the benefit of that party. This distinguishes respondent's sentence from suspended criminal sentences imposed outside the contempt context.

This Court traditionally has inquired into the substance of contempt proceedings to determine whether they are civil or criminal, paying particular attention to whether the sanction imposed will benefit another party to the proceeding. In this case, the California Superior Court suspended respondent's sentence on the condition that he bring himself into compliance with a court order providing support for his children, represented in the proceeding by petitioner. I conclude that the proceeding in this case should be characterized as one for civil contempt, and I would reverse the judgment below.


* Unlike the Court, ante at 485 U. S. 638 -641, I find no ambiguity in the court's sentencing order that hints that respondent can purge his jail sentence by paying off the arrearage alone. The sentencing order suspends execution of the jail sentence and places respondent on probation on the conditions that he both make future support payments at $150 per month and pay $50 per month on the arrearage. App. 40. If respondent pays off the arrearage before the end of his probation period, but then fails to make a current support payment, the suspension will be revoked and he will go to jail. See People v. Chagolla, 151 Cal.App.3d 1045, 199 Cal.Rptr. 181 (1984) (explaining that if a court suspends a sentence on conditions, and any condition is violated, the court must reinstate the original sentence).

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