How does the burden of proof work for a charge of contempt? The Alabama Court of Civil Appeals muddied the waters in McMorrough v. McMorrough, Case No. 2040144 (Ala. Civ. App. August 26, 2005).
The parties were divorced in 2003, and the judge ordered the husband to pay child support, alimony, and alimony in gross. After the husband failed to make the payments as ordered, the wife moved for a finding of contempt against him. The husband’s sole argument was that he was unable to make the payments.
Black letter law on the burden of proof for contempt is that when a delinquent payor presents evidence of inability to pay as a defense to the charge of contempt, the burden of proof falls upon the payee to show “beyond a reasonable doubt” that the payor can pay. This from Thomas v. Thomas, 406 So. 2d 939 (Ala. Civ. App. 1981).
The husband in McMorrough testified that he was unemployed and that he was willing to pay but unable to pay. Nevertheless, the Appeals Court ruled that he had not “presented evidence” sufficient to meet the Thomas test. “Although the former husband claimed an inability to pay, he offered no substantive evidence of that inability such that the burden referenced by [the dissent] would have shifted to the former wife.” Therefore, said the Appeals Court, the trial court was correct in holding the husband in contempt.
In his dissent, Judge Crawley called the majority to task for its apparent departure from the Thomas standard. “That the former husband produced evidence of his inability to pay is irrefragable [I had to look this one up; it means irrefutable]. The former husband’s testimony regarding his inability to pay is substantive evidence that is sufficient to shift the burden to the former wife. See Pardue v. Pardue, [Ms. 2030620, June 30, 2005] ___ So. 2d ___, 2005 Ala. Civ. App. LEXIS 355 (Ala. Civ. App. 2005); and King v. King, 620 So. 2d 56 (Ala. Civ. App. 1993).”
So what’s the new standard? It would have been nice if the majority had admitted it was changing the law and articulated the new standard specifically. In the absence of that honesty, we’re left to conclude that the Court doesn’t really mean what it says any more about “any evidence” being enough to shift the burden of proof to the payee. What the Court appears to mean now is that the payor must present something more than any evidence. How much more is a matter of conjecture.