APPELLATE COURT OF THE HOPI TRIBE
CAROL JOHNS, )
)
Appellant, )
AP-008-89*
v.
LEROY LEWIS )
Respondent.
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
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that 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.
Discussion
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
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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
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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.
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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
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