M E M O
TO:Joint Procedure Committee
RE:Section 27-10-01.3, N.D.C.C., Contempt
Judge Bohlman has requested North Dakota's statutes on contempt be amended to avert alleged contemnors from attempting to invoke the Fifth Amendment privilege against compulsory self-incrimination in proceedings to impose remedial sanctions for failure to pay support. The proposed amendment provides: "In a proceeding to impose a remedial sanction for failure to pay child or spousal support, an order to pay support is prima facie evidence the obligor has the ability to pay, and the burden of persuasion is upon the obligor to prove inability to pay the support ordered." Judge Bohlman suggests the amendment is needed because if there is not a presumption the obligor has the ability to pay, the obligor will invoke the privilege against self-incrimination to make the task of proving the obligor's ability to pay very difficult for the obligee.
This memo addresses who has the burden of proving the obligor's ability or inability to comply with a court's order to pay support. Also addressed is the applicability of the privilege against self-incrimination, and whether placing the burden of persuasion on the obligor infringes upon the Fifth Amendment privilege.
1. Burden of Proving Ability or Inability to Comply with an Order to Pay Support in a Civil Contempt Proceeding
Punishment may not be imposed in a civil contempt proceeding when the alleged contemnor is unable to comply with the terms of the order. Shillitani v. United States, 384 U.S. 364, 371 (1966). State v. Babcock, 251 N.W. 849, 852 (N.D. 1933). The purpose of a civil contempt proceeding is remedial or coercive, and the sanction is conditioned upon performance of an affirmative act. Hicks v. Feiock, 485 U.S. 624, 631 (1988). Baier v. Hampton, 417 N.W.2d 801, 804 (N.D. 1987). "Where compliance is impossible, neither the moving party nor the court has reason to proceed with the civil contempt action." United States v. Rylander, 460 U.S. 752, 757 (1983).
The United States Supreme Court has indicated it is constitutionally permissible to place the burden of proving inability to comply with a court order upon the alleged contemnor in a civil contempt proceeding. Hicks v. Feiock, 485 U.S. 624 (1988). In Hicks, the constitutionality of a state statute was challenged which placed the burden of proving inability to comply with a child support order on the alleged contemnor. The Court held the statute violates due process in a criminal proceeding, because it undercuts the State's burden to prove guilt beyond a reasonable doubt. However, the Court said, in a proceeding for civil contempt, the statute would be constitutionally valid. Id. at 638.
Most states place the burden of proving inability to comply with an order previously issued upon the alleged contemnor in a civil contempt proceeding. 17 Am.Jur.2d Contempt 161 (1990). North Dakota case law also indicates the alleged contemnor has the burden of proving inability to comply with the order allegedly being violated. State By Job Service North Dakota v. Dionne, 334 N.W.2d 842, 846 (N.D. 1983); Thorlakson v. Wells, 207 N.W.2d 326, 329 (N.D. 1973); Hodous v. Hodous, 36 N.W.2d 554, 559-60 (N.D. 1949).
2. Applicability of Fifth Amendment Privilege Against Compulsory Self-Incrimination in Civil Contempt Proceeding
The privilege against compulsory self-incrimination may be asserted in a civil proceeding. State, County of Cass v. Gruchalla, 467 N.W.2d 451, 453 (N.D. 1991). In a civil contempt proceeding for failure to pay child support, when an alleged contemnor properly invokes his or her privilege against self-incrimination, the alleged contemnor cannot be compelled to testify unless granted immunity from subsequent prosection. See Engelby v. Engelby, 479 N.W.2d 424, 426-27 (Minn. App. 1992); State v. Hass, 264 N.W.2d 464, 469 (N.D. l978).
However, assertion of the privilege against self-incrimination is not a substitute for evidence that would assist in meeting the alleged contemnor's burden. United States v. Rylander, 460 U.S. 752, 758 (1983). Even though an alleged contemnor is forced to choose between testifying to meet their burden or presenting evidence by other means, the Fifth Amendment privilege is not violated. See id. at 759. Otherwise, the privilege would be converted from a shield against compulsory self-incrimination into a sword whereby an alleged contemnor would be freed from adducing support to meet their burden of proof. Id. at 758.
In a contempt proceeding for failure to pay child support, if an alleged contemnor does not wish to testify, the onus is on him or her to establish inability by other evidence. Lamb v. Eads, 346 N.W.2d 830, 832 (Iowa 1984). The claim of privilege cannot be used to somehow affirmatively establish inability to pay support. Id. at 832. Otherwise, the alleged contemnor would be gaining an unfair advantage by asserting the privilege, especially since in a civil proceeding for failure to pay support, the plaintiff's only source of evidence is frequently the alleged contemnor. Engelby v. Engelby, 479 N.W.2d 424, 427 (Minn. App. 1992). The alleged contemnor's financial condition, income, and efforts to comply with the support order are matters peculiarly within his or her own knowledge. Id. at 427.
Should Section 27-10-01.3, N.D.C.C., be amended to codify case law, and to clarify a support order is prima facie evidence the obligor has the ability to pay the support ordered. The proposal clarifies the alleged contemnor has the burden of proving inability to comply with a support order in a proceeding to impose a remedial sanction for failure to pay support. By issuing its order for support, the court has already made an implicit finding of ability to comply with the order and the evidence is in control of the alleged contemnor.