Appeal from the Superior Court of the District of Columbia (PS-587-87) (Hon. Lee F. Satterfield, Jr., Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before RUIZ and REID, Associate Judges, and SCHWELB, Senior Judge.*fn1
Opinion for the court by Associate Judge REID.
Concurring opinion by Senior Judge Schwelb at p.22.
Following a bench trial, appellant David Warner was found guilty of a single count of criminal contempt for failure to comply with a court order to pay child support, in violation of D.C. Code § 46-225.02 (2001).*fn2 He contends that the presumption of willfulness created by D.C. Code § 46-225.02 violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States. He also maintains that there was insufficient evidence beyond a reasonable doubt to find him guilty of criminal contempt. We hold that D.C. Code § 46-225.02 does not unconstitutionally shift the burden of proving willfulness from the government to the defendant; nor did the trial court shift the burden in this case. We further hold that under § 46-225.02, the defendant bears the burden of production, or the presentation of evidence showing an inability to pay, but that, as usual, the government bears the burden of persuasion, that is, the burden of proving willfulness as an element of criminal contempt. Because the government sustained its burden of proving willfulness under the statute, and since the evidence was sufficient to permit the trial court to find beyond a reasonable doubt that Mr. Warner voluntarily impaired his ability to comply with the court order to pay child support, and thus was guilty of contempt under § 46-225.02, we affirm the judgment of the trial court.
The government presented evidence showing that Mr. Warner was ordered to pay $118.60 bi-weekly in child support but, as established by seven prior civil contempt findings, he failed to make the required payments between 1990 and 2002.*fn3 In addition, without objection, the trial court admitted into evidence court child support payment records evidencing: (1) a $38,010.22 arrearage in child support payments by Mr. Warner; (2) two payments which he made on December 12, 2003 totaling $200; and (3) a payment made by him on April 15, 2002 for $64.06.
To rebut the government's evidence and show his inability to make the court-ordered child support payments, Mr. Warner testified in his own behalf. He stated that he is a high school graduate and worked from 1980 to 1989 at the District of Columbia Department of Recreation. While he was employed, money was regularly taken from his checks for child support payments at that time. In 1990, however, he was terminated from the Department of Recreation and began to look for other work. Mr. Warner explained that he "did back and forth  jobs." He has been denied some jobs "due to [his] background check," which revealed his conviction of a crime.*fn4 He introduced exhibits (a "book" showing applications for jobs, a letter denying employment and tax forms; and a letter concerning a job he commenced the week before his testimony) to demonstrate his efforts to find work. He stated that he was currently employed at an apartment complex, earning $7.50 an hour for approximately sixteen hours of work a week. In addition, Mr. Warner indicated that he lives with and cares for his blind mother.
In its cross-examination, the government sought to establish that Mr. Warner voluntarily impaired his ability to pay by voluntary unemployment or underemployment. In response to the government's questions, Mr. Warner acknowledged that he was released from his incarceration in January 2003 on a civil contempt finding for failure to pay child support. He could not recall when or how exactly he was employed prior to the incarceration. He was asked, "[i]n 2002, did you work prior to November when you [were] incarcerated for contempt," and initially responded, "[h]ard to remember." When confronted with an unidentified document showing that he "worked from June 2002 to February 2003 at Day Care, Inc.," Mr. Warner stated that he "[did not] remember." Nevertheless, he filed an income tax return for 2002 (he maintained that his "aunt filed [his] taxes for [him]"), and his tax refund "was intercepted for child support." Although Mr. Warner had indicated on an employment application that he was employed from March 2003 to August 2003 with the Montgomery County Government, at trial he claimed that he only worked "two days at Park[s] and Planning." He asserted that he listed Montgomery County government on his application "just to get a job" and that "everybody . . . [does] false things on the application."
Finally, Mr. Warner was asked about his physical ailments on cross-examination, including his asthma and a surgically removed knee cap. Mr. Warner explained that his knee "prevent[ed] [him] from standing a long period of time" and "sometimes" precluded him from working. He did not have medical documentation showing that his asthma prevented him from working, but he declared that he uses "Albuterol" to manage his asthma.
The trial court observed that Mr. Warner "[has] seven prior civil contempt findings . . . for failing to pay child support." The trial judge found that Mr. Warner owed "$38,000 worth of child support," and that he is "able to work." Moreover, the court determined that Mr. Warner "worked for a period of times (sic) in the 80's consistently and throughout the 90's and the year 2000, this decade inconsistently." The court added that "while [Mr. Warner's] prior conviction so long ago may have prevented one employer from hiring [him], there's no record to indicate that that is the thing that holds him back. He has work." Furthermore, the court discredited Mr. Warner's testimony, saying: "he has no problem lying on [his] application for employment. So, how am I going to believe him here today when he will do whatever it takes to do whatever he wants to do?" Based on these findings and the credibility determination, the court concluded that: "The government has established knowledge and willfulness beyond a reasonable doubt and therefore I find him guilty of criminal contempt." With respect to its finding of "willfulness" the court stated:
Willfulness, under the statute, simply is that knowledge of the child support ordered and failure to pay. But in this [case] you have more. You have seven prior contempts . . . in enforcing child support but he still continued not to pay. A long history of not paying child support to the tune of $38,000. And he clearly, in the Court's view, from the records, is able to work.
Mr. Warner contends that his "conviction [of criminal contempt] pursuant to D.C. Code § 46-225.02 is improper and should be reversed as it violates due process." He argues that the statutory presumption set forth in § 46-225.02 (d) unconstitutionally "requires [him] to carry the burden of persuasion on an element of the charge and effectively reduces the government's ultimate burden of proof" below the reasonable doubt standard. The government argues that D.C. Code § 46-225.02 (d) "does not violate due process because the statute does not impermissibly shift the burden of proof to [Mr. Warner]." Rather, once the government establishes the elements of the offense, the statute allows the obligor to rebut the presumption of willfulness by presenting evidence that the failure to pay was the result of incarceration, hospitalization or disability, or other circumstance. Therefore, the statute "merely places the burden on the obligor to present an affirmative defense to the presumption of willfulness," which is "constitutionally permissible."
D.C. Code § 46-225.02 (a)*fn5 states, in pertinent part, that: "The Mayor or any party who has a legal claim to any child support may initiate a criminal contempt action for failure to pay the support by filing a motion in the civil action in which the child support order was established. . . ." Section 46-225.02 (b)(1) specifies a range of actions -- from incarceration to ordering rehabilitation programs -- that a trial court may take "[u]pon a finding by the court that an obligor has willfully failed to obey any lawful order of child support." Mr. Warner challenges the constitutionality of § 46-225.02 (d) which provides:
For purposes of this section, failure to pay child support, as ordered, shall constitute prima facie evidence of a willful violation. This presumption may be rebutted if the obligor was incarcerated, hospitalized, or disabled during the period of nonsupport. These circumstances do not constitute an exhaustive list of circumstances that may be used to rebut the presumption of willfulness.
Our standard of review in the type of case before us has been articulated previously. "On appeal of a finding of criminal contempt, [this Court] must view the evidence in the light most favorable to sustaining the judgment." Rogers v. Johnson, 862 A.2d 934, 936 (D.C. 2004) (citing In re Vance, 697 A.2d 42, 44 (D.C. 1997) (other citations omitted)). We review a challenge to the constitutionality of a statute de novo. SeeBeeton v. District of Columbia, 779 A.2d 918, 921 (D.C. 2001) (quoting Jemison v. National Baptist Convention, USA, Inc., 720 A.2d 275, 281 (D.C. 1998) (internal quotations and other citations omitted)).
When we interpret statutes, we look first to the plain and ordinary meaning, and read them in light of the statute as a whole. See James Parreco & Son v. Rental Hous. Comm'n, 567 A.2d 43, 45 (D.C. 1989). "The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used." Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (citations omitted). "We must be  mindful that our interpretation is not at variance with the policy of the legislation as a whole. . . . " Jeffrey v. United States, 878 A.2d 1189, 1193 (D.C. 2005).
In construing the language of the statute before us, we note that the Council chose not to rely on existing contempt authority, such as D.C. Code § 11-944 (2001),*fn6 but rather inserted a new contempt provision directly in the child support enforcement statute. The government has the burden of proving a willful failure on the part of the obligor to pay child support in accordance with a lawful court order. D.C. Code § 46-225.02 (b)(1). But the District's legislature created a presumption specifying that the government's proof of "failure to pay child support, as ordered, shall constitute prima facie evidence of a willful violation" of the court order. D.C. Code § 46-225.02 (d). However, the obligor may rebut that presumption by introducing evidence of special circumstances such as "incarcerat[ion], hospitaliz[ation], or disab[ility]." Id.
In Rogers, supra, we were presented with our first opportunity to interpret § 46-225.02, a statute which took effect on March 6, 2002, and which the Council of the District of Columbia enacted in an "effort to improve its rate of collecting child support payments." Id. at 936. According to the legislative history of the statute, it "is designed to punish and deter the willful failure of non-custodial parents to comply with an order to pay child support." COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 14-26, THE "CHILD SUPPORT ENFORCEMENT AMENDMENT ACT OF 2001," July 27, 2001, at 1. In that regard, the statute "complements existing civil remedies by adding a criminal contempt sanction for those who choose not to meet their legal parental obligations." Id. The statute is aimed at "the truly recalcitrant obligor." Id.at 3.
We determined in Rogers that the government presented "a prima facie case that [appellant's] conduct was 'willful' under [D.C. Code] §§ 46-225.02 (b)(1) and 46-225.02 (d)" because it "demonstrated that [the appellant] was obligated to pay child support to [the mother of his three children], that he was aware of his obligations under the support order, and that he had repeatedly failed to make the required payments." Id. at 937. Thus, in accordance with the plain meaning principle of statutory construction, and consistent "with the policy of the legislation as a whole," Jeffrey, supra, 878 A.2d at 1193, we identified the following elements of a § 46-225.02 criminal contempt action for failure to pay child support: (1) the existence of a court order obligating the defendant to pay child support; (2) the defendant's knowledge of his obligation to pay child support in accordance with the court order; (3) the defendant's failure to make the required payments; and (4) the defendant's failure to ...