A few days ago I prosecuted a contempt action. The proof for one of the allegations of contempt was very document intensive and mathematical–reimbursement for unpaid medical expenses–and another was heavily reliant on exhibits. I figured that establishing violations would be easier by having my client explain the records through direct testimony rather than by cross-examining the opposing party (and likely have him argue with me on each exhibit).
Thus, atypically, I completed my presentation without calling the Defendant in my case-in-chief. Opposing counsel, having read a very recent blog on involuntary non-suits in family court, then moved for a dismissal of my client’s claims, arguing that I had failed to establish willfulness–an essential element of a contempt claim and an element that must be proven by clear and convincing evidence. The judge denied the non-suit request, opposing counsel called his client to the stand, and his client proceeded to give testimony–largely on his own direct examination–that not only established willfulness but established criminal contempt–which requires proof beyond a reasonable doubt. In his ruling, the judge stated that I had not clearly established willfulness in my case in chief but that the Defendant’s own testimony established his willfulness. Had the judge believed I had the burden of proof on willfulness, he possibly would have granted the Defendant’s non-suit request.
That proceeding inspired this blog. Is the willfulness element of contempt an essential part of the moving party’s case-in-chief or is lack of willfulness an affirmative defense that a defending party must demonstrate. In most cases the moving party has the burden of proof. Yet case law and court rules demonstrate that on the willfulness issue for contempt the burden shifts to the defending party.
In a proceeding for contempt for violation of a court order, the moving party must show the existence of the order and the facts establishing the respondent’s noncompliance. The burden then shifts to the respondent to establish his defense and inability to comply with the order.
Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130, 131 (1986) (citations omitted).
That case law was codified in the following section of Family Court Rule 14(g):
At the contempt hearing, the moving party must establish a prima facie case of willful contempt by showing the existence of the order of which the moving party seeks enforcement, and the facts showing the respondent’s noncompliance. The moving party shall satisfy the burden of proof required by law for the specific nature of contempt before the court. Once the moving party establishes a prima facie case, the respondent is entitled to present evidence of a defense or inability to comply with the order. If requested, the Court may allow reply testimony.
While not explicit on whether the willfulness issue is part of the burden of proof of the moving party or an affirmative defense of the defending party, the authority above shows that the only burden the moving party has to establish contempt is the existence of the court order and the facts showing noncompliance. The responding party then has the burden of establishing the inability to comply with the court order (e.g., lack of willfulness). While not as explicit as one might hope, it appears that lack of willfulness is actually an affirmative defense to claims of contempt. The family court judge was correct not to grant the non-suit despite his believe that I failed to provide clear and convincing evidence of willfulness in my case-in-chief.
What he says is not true. Does he have to prove it ?