In re Marriage of Ray
5 N.E.3d 348
Ill. App. Ct.2014Background
- Petitioner filed for dissolution and interim custody/support in Aug 2011; December 2011 agreed order required $4,000 monthly temporary relief ($2,000 maintenance, $2,000 child support).
- Respondent ceased payments in December 2012; petitioner sought rule to show cause for indirect civil contempt and fees.
- March 2013 contempt hearing held respondent failed to appear; court found prima facie contempt and ordered purge amount of $1,000 to be paid by respondent.
- March 26, 2013 hearing occurred; respondent invoked Fifth Amendment privilege and did not offer evidence; trial court held him in contempt for failure to pay until purge.
- Trial court determined purge amount based on presumed arrears (about $5,000) with 20% purge due to limited financial knowledge; order affirmed on appeal.
- Appellate court held that respondent’s Fifth Amendment invocation did not shift burden away from petitioner; contempt proper when prima facie case established and respondent failed to show cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fifth Amendment privilege can bar contempt proof | Ray argues privilege does not bar contempt if prima facie noncompliance shown | Ray contends privilege prevents introduction of evidence after invocation | Burden not shifted; contempt upheld despite Fifth Amendment invocation |
| Whether petitioner established prima facie contempt at March 20, 2013 hearing | Petitioner provided evidence of nonpayment and arrears | No complete record of March 20, 2013 hearing; burden starts when prima facie shown | Prima facie established; burden shifted to respondent |
| Whether the purge amount was properly set at $1,000 | Purview of arrears and lack of financial knowledge justify purge | Lower purge amount possible if full financial picture known | Purge amount affirmed as 20% of estimated arrears given limited financial information |
Key Cases Cited
- United States v. Rylander, 460 U.S. 752 (U.S. 1983) (contempt burden shifting in presence of fifth-amendment claim discussed)
- Allen v. Illinois, 478 U.S. 364 (U.S. 1986) (Fifth Amendment applies to states via 14th Amendment)
- Kastigar v. United States, 406 U.S. 441 (U.S. 1972) (fifth-amendment privilege scope and use of compelled testimony)
- Foutch v. O’Bryant, 99 Ill.2d 389 (Ill. 1984) (record completeness and burden on appellant in trial errors)
- In re Marriage of LaTour, 241 Ill. App. 3d 500 (Ill. App. 1993) (contempt in dissolution proceedings and prima facie case)