State v. Vanden-Busch, 349 P.3d 655

As part of a dissolution, defendant was ordered to pay $604/month child support and accumulated substantial arrears after periods of unemployment/underemployment.
State filed for remedial contempt (show cause) in 2012, alleging remedial sanctions were needed to enforce support.
Defendant asserted the affirmative defense of inability to pay, claiming insufficient funds since 2008; evidence showed limited receipts (a settlement ~ $5,000 and a $3,000 gift) not used for support and some discretionary purchases.
Trial court found defendant could not pay full support but could have paid something, concluded the failure to pay was willful, and held him in contempt.
The trial court imposed a determinate (punitive) 60-month term of bench probation in its judgment.
On appeal, the court affirmed contempt but found plain error in imposing a determinate (punitive) probation term in a remedial proceeding and remanded to convert the sanction to remedial.

Issue	State's Argument	Defendant's Argument	Held
Whether defendant proved inability to pay as an affirmative defense to remedial contempt for nonpayment of child support	Contempt is proper if defendant, aware of order, failed to comply or seek modification; if able to pay anything but did not, contempt may be found	Defendant argued proving inability to comply with the monthly order should preclude contempt (need not show ability to pay any amount)	Held: Court may hold in contempt if defendant could have paid something and did not; defendant failed to establish complete inability to pay, so contempt affirmed
Whether trial court could impose a determinate (punitive) term of probation following remedial contempt proceedings	Case law treats a determinate term as punitive, and the proceeding was remedial, so imposing such a term was error	Defendant argued the determinate probation was unauthorized in a remedial proceeding and thus plain error	Held: Imposing determinate probation in remedial contempt was plain error; appellate court reverses and remands to impose remedial sanction

State ex rel Mikkelsen v. Hill, 315 Or. 452, 847 P.2d 402 (Oregon Supreme Court) (willful failure to pay ordered child support constitutes contempt and inability to pay is an affirmative defense)
State ex rel Fry v. Fry, 28 Or. App. 403, 559 P.2d 1293 (Oregon Ct. App.) (defendant must comply with support order to extent of ability)
State ex rel Wolf v. Wolf, 11 Or. App. 477, 503 P.2d 1255 (Oregon Ct. App.) (partial inability does not excuse failure to apply available funds to support)
Miller & Miller, 204 Or. App. 82, 129 P.3d 211 (Oregon Ct. App.) (trial court may not impose punitive sanction in remedial contempt proceeding)
Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (Oregon Supreme Court) (factors for exercising appellate discretion to correct plain error)