Defendant appeals a judgment finding that he is in punitive contempt of court for failure to pay child support, ORS 33.015, and imposing sanctions, ORS 33.065. Defendant contends that the trial court erred in finding him guilty of contempt of court, because there was no evidence that he acted “willfully” as required by ORS 33.015(2)(b).
1
We disagree. Under
State ex rel Mikkelsen v. Hill,
The facts are not in dispute. As part of defendant’s dissolution of marriage, defendant was ordered to pay $250 per month indefinitely for the support of an adult child. Defendant failed to make payments between December 2006 and December 2008, resulting in payments due of $16,475.90. Defendant was charged with contempt of court, ORS 33.015, for failure to pay child support. At the bench trial, the state offered a printout of defendant’s payment history, showing that defendant had failed to make the payments. The printout was admitted as an exhibit without objection. The court found that defendant’s actions constituted “willful disobeying of the court’s order” and found defendant guilty.
On appeal, defendant contends that the trial court erred by finding defendant in contempt of court based only on evidence of nonpayment. Defendant asserts that a finding of
contempt of court requires proof that the defendant acted “willfully,” ORS 33.015(2), and there was no evidence that defendant acted willfully. The state argues that the result in this case is controlled by
State ex rel Mikkelsen,
In State ex rel Mikkelsen, as here, the defendant was held in contempt for failure to make child support payments. Id. at 454. The Supreme Court held that, “[i]n the absence of an appeal of a support order or a motion to modify the support order, a court permissibly may infer that a parent who was ordered to pay support previously had the ability to pay and continues to have the ability to pay.” Id. at 457-58. The court went on to state that “willful disobedience” of a court order to pay child support “is established by showing that a party, aware of a court order, neither has complied with nor sought a modification of the court’s order.” Id. at 458.
Here, the state proved its case beyond a reasonable doubt by establishing that (1) there was a valid support order, (2) defendant knew that he had been ordered to pay, and (3) there was no evidence that defendant had paid or sought modification of the order. Under State ex rel Mikkelsen, no more is required. Id. at 459. 2
In addition, under ORS 33.065(7), “[i]nability to comply with an order of the court is an affirmative defense.” Defendant had the burden of filing notice of intent to offer evidence of an affirmative defense and the burden of proving an affirmative defense by a preponderance of the evidence. ORS 33.065(7); ORS 161.055(2);
see also State ex rel Mikkelsen,
Affirmed.
Notes
ORS 33.015(2) provides, in part:
“ ‘Contempt of court’ means the following acts, done willfully:
“(b) Disobedience of, resistance to or obstruction of the court’s authority, process, orders or judgments.”
At oral argument and for the first time, defendant argued that, because ORS 107.135, the statute that sets forth the process for modifying child support payments, does not provide for modification of child support for an adult child, we should use this case to create an exception to the rule in
State ex rel Mikkelsen.
However, we will not address issues raised for the first time at oral argument.
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