                                    Illinois Official Reports

                                           Appellate Court



                             In re Marriage of Ray, 2014 IL App (4th) 130326



Appellate Court                In re: MARRIAGE OF KARI L. RAY, Petitioner-Appellee, and
Caption                        DAVID J. RAY, Respondent-Appellant.



District & No.                 Fourth District
                               Docket No. 4-13-0326



Filed                          March 3, 2014



Held                           In postjudgment dissolution proceedings arising from respondent’s
(Note: This syllabus           failure to pay maintenance and child support, petitioner established a
constitutes no part of the     prima facie case of contempt by presenting evidence of respondent’s
opinion of the court but       noncompliance with the trial court’s order, and when respondent
has been prepared by the       raised his fifth-amendment privilege against self-incrimination rather
Reporter of Decisions          than presenting evidence as to why he should not be held in contempt,
for the convenience of         the trial court properly entered an order holding respondent in
the reader.)                   contempt, since respondent could not be allowed to use the privilege
                               to avoid producing evidence that he should not be held in contempt
                               and to shift the burden of proof back to petitioner.




Decision Under                 Appeal from the Circuit Court of Jersey County, No. 11-D-52; the
Review                         Hon. Joshua A. Meyer, Judge, presiding.




Judgment                       Affirmed.
     Counsel on               Thomas G. Maag (argued), of Maag Law Firm, LLC, of Wood River,
     Appeal                   for appellant.

                              John C. Webster (argued), of Williamson, Webster, Falb & Glisson, of
                              Alton, for appellee.




     Panel                    JUSTICE KNECHT delivered the judgment of the court, with
                              opinion.
                              Justices Turner and Steigmann concurred in the judgment and
                              opinion.




                                               OPINION

¶1         In August 2011, petitioner, Kari L. Ray, filed a petition for dissolution of marriage and a
       verified petition for temporary custody, maintenance, child support, and attorney fees. In
       December 2011, the trial court entered an agreed order compelling respondent, David J. Ray,
       to pay, inter alia, child support in the amount of $2,000 per month. In December 2012,
       respondent ceased making support payments per the court’s order, which prompted petitioner
       to file a petition for rule to show cause to issue for indirect civil contempt and attorney fees.
       After a March 2013 hearing, the trial court held respondent in indirect civil contempt and set
       the purge amount at $1,000 cash. On appeal, respondent asserts the court improperly held him
       in contempt where respondent invoked his fifth-amendment privilege against
       self-incrimination during the contempt proceedings. We affirm.

¶2                                          I. BACKGROUND
¶3         On August 22, 2011, petitioner filed a petition for dissolution of marriage. The same day,
       petitioner filed a verified petition for temporary custody, maintenance, child support, and
       attorney fees. In December 2011, the trial court entered an agreed order for temporary relief.
       The agreed order, in pertinent part, required respondent to pay $4,000 per month to petitioner.
       Of the $4,000 sum, the parties agreed $2,000 would be deemed maintenance and $2,000 would
       be deemed child support.
¶4         Respondent complied with this order until December 2012, when payments stopped. In
       January 2013, petitioner filed a petition for rule to show cause and attorney fees. The petition
       alleged respondent had failed to timely pay his temporary support and maintenance
       obligations, including December 2012 and each month thereafter, despite petitioner’s repeated
       demands for payment. The petition requested the trial court enter an order requiring respondent

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     to show cause why he should not be held in indirect civil contempt of court for failure to meet
     his payment obligation.
¶5        Following a February 7, 2013, hearing on petitioner’s petition for rule to show cause, the
     trial court ordered respondent to show cause why he should not be held in contempt for failure
     to comply with the court’s December 2011 order for temporary relief. The court set the return
     on the rule for March 20, 2013. Petitioner thereafter filed an amended petition for rule to show
     cause on March 13, 2013. The amended petition added to its previous allegations (1)
     respondent’s failure to pay child support during the months of January and February 2013, and
     (2) respondent’s payment of $1,000 toward his arrearages in maintenance and child support
     with a check later returned for insufficient funds.
¶6        On March 20, 2013, the date of the hearing on the rule to show cause, respondent did not
     appear. The record contains no indication why he failed to appear. Per the court’s written order
     finding contempt (filed after the March 26, 2013, hearing discussed below), the court found
     petitioner established a prima facie case of contempt at this hearing. We note here the record
     contains no report of proceedings, bystander’s report, or agreed statement as to what transpired
     during the March 20, 2013, hearing. Following the hearing, the trial court entered an order
     holding respondent in contempt for his failure to appear on the rule entered on February 7,
     2013. The order allowed respondent to purge the contempt by appearing on March 26, 2013, at
     10:00 a.m., in the Macoupin County courthouse. The court further ordered respondent to show
     cause on petitioner’s amended petition for rule to show cause at that time.
¶7        The parties appeared on March 26, 2013, to address the rule to show cause. Before
     proceeding, respondent orally moved to stay the proceedings due to a pending federal criminal
     investigation of respondent regarding the nonpayment of taxes. Respondent contended a stay
     was proper because he was unable to defend himself–he would be asserting his
     fifth-amendment privilege in response to any question that might incriminate him. The trial
     court denied respondent’s motion to stay the proceedings, finding the potential harm to
     respondent was outweighed by several other factors in favor of denying the stay.
¶8        The cause proceeded to hearing on the rule to show cause. The trial court first admonished
     respondent of his rights in contempt proceedings. Respondent was then sworn to testify.
     Respondent stated his name and address in response to the court’s questioning. He then
     asserted his fifth-amendment privilege in response to the court’s question whether he was
     subject to a rule to show cause order. He further indicated he would plead the fifth amendment
     as to any and all evidence he could possibly present in his defense. In other words, because his
     finances were under investigation, he could not present any evidence on his current inability to
     pay without incriminating himself.
¶9        Accordingly, the trial court held respondent in contempt, stating:
              “Okay. Well, I think, then based on the fact that once I enter the [r]ule to [s]how [c]ause
              [o]rder, the burden shifted to the [r]espondent to show cause[,] and he has not shown
              cause. So what I’m going to do is hold him in contempt of court for failure to pay child
              support and maintenance as alleged in the [a]mended [p]etition that was filed by the
              [p]etitioner.”

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       Counsel for respondent again noted her objection “that this [c]ourt is holding him in contempt
       for asserting his constitutional rights under the [f]ifth [a]mendment.” The court noted the
       objection and proceeded to set respondent’s purge amount.
¶ 10       The trial court asked whether the parties would stipulate as to the amount of child support
       owed or whether testimony would be presented on the issue. Respondent’s counsel would not
       stipulate because respondent did not “believe he should be paying [temporary] maintenance
       ***. So arguably the payments he has made should all be credited towards child support ***.”
       Consequently, petitioner took the stand to testify as to the amount of child support in arrears.
       Petitioner testified she did not receive the ordered payments in December 2012 or January
       2013. In February 2013, respondent issued petitioner two checks: one for $2,000, which was
       honored, and one for $1,000, which was later dishonored and returned for insufficient funds.
       Petitioner never received the remaining $2,000 owed to her for February 2013. Based on this
       testimony, the parties ascertained respondent owed petitioner $10,000 in outstanding child
       support and maintenance.
¶ 11       From this evidence, the trial court set respondent’s purge amount at $1,000. The court
       explained it set the purge at 20% of the approximate support owed, which the court found to be
       approximately $5,000, because the court did not have sufficient knowledge of respondent’s
       present financial situation.
¶ 12       The next day, on March 27, 2013, the trial court entered a written order reflecting its
       rulings regarding the stay, the finding of contempt, and the purge amount. This appeal
       followed.

¶ 13                                           II. ANALYSIS
¶ 14        On appeal, respondent argues the trial court improperly held him in contempt for failing
       and refusing to testify at the March 2013 hearing on the rule to show cause. The trial court,
       respondent argues, made its finding based on an adverse inference drawn from respondent’s
       invocation of his fifth-amendment right, which was improper absent the presentation by
       petitioner of any evidence of respondent’s ability to pay the allegedly unpaid support
       payments. Respondent has not taken issue with the trial court’s denial of his motion to stay the
       contempt proceedings.
¶ 15        In marriage dissolution proceedings, when a party fails to obey a trial court’s order for
       temporary relief, the party entitled to relief may initiate indirect civil contempt proceedings by
       filing a petition for rule to show cause. In re Marriage of LaTour, 241 Ill. App. 3d 500, 508,
       608 N.E.2d 1339, 1345 (1993). Noncompliance with a court order is prima facie evidence of
       contempt. In re Marriage of Dunseth, 260 Ill. App. 3d 816, 829, 633 N.E.2d 82, 93 (1994).
       When a party establishes a prima facie case of contempt, the burden shifts to the contemnor to
       show cause why he should not be held in contempt. In re Marriage of Betts, 155 Ill. App. 3d
       85, 98, 507 N.E.2d 912, 921 (1987). To meet this burden, the contemnor may present evidence
       “his noncompliance was not wilful and contumacious and that he had a valid excuse for his
       failure to pay.” Id.


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¶ 16       The fifth amendment to the United States Constitution provides, in pertinent part, no
       person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const.,
       amend. V. The fifth-amendment privilege against self-incrimination applies to the states
       through the fourteenth amendment. Allen v. Illinois, 478 U.S. 364, 368 (1986). The privilege
       may be asserted “in any proceeding, civil or criminal, administrative or judicial, investigatory
       or adjudicatory; and it protects against any disclosures that the witness reasonably believes
       could be used in a criminal prosecution or could lead to other evidence that might be so used.”
       Kastigar v. United States, 406 U.S. 441, 444-45 (1972).
¶ 17       In this case, we will presume petitioner established a prima facie case of contempt by
       presenting to the trial court evidence of respondent’s failure to pay his support obligations
       pursuant to the court’s temporary order for relief. The record does not show what transpired
       during the March 20, 2013, hearing, during which the court found petitioner established a
       prima facie case of contempt. This deficiency in the record must be resolved against
       respondent, as the appellant “has the burden to present a sufficiently complete record of the
       proceedings at trial to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92,
       459 N.E.2d 958, 959 (1984). “Any doubts which may arise from the incompleteness of the
       record will be resolved against the appellant.” Id. at 392, 459 N.E.2d at 959.
¶ 18       Consequently, at the March 26, 2013, hearing, the burden had already shifted to respondent
       to show cause why he should not be held in contempt. Respondent did not attempt to meet his
       burden and instead asserted his fifth-amendment privilege. Respondent argues after he invoked
       his fifth-amendment privilege, the trial court could not enter an order of contempt without
       petitioner presenting some evidence of his noncompliance. Respondent argues as follows:
                   “All [p]etitioner needed to do to properly have [r]espondent held in contempt of
               court by the [c]ircuit [c]ourt for the issues at bar, was to present some evidence at the
               hearing, other than mere non-payment by [r]espondent. For instance, speaking strictly
               in the hypothetical, [p]etitioner could have, if true, testified that [r]espondent has a
               secret bank account in the Cayman Islands with ten million dollars on deposit, and that
               he had not paid her. Or [p]etitioner could have, if true, presented evidence that
               [r]espondent has significant assets that could be used to pay. Instead, at the actual
               hearing, no evidence was presented at all, including but not limited to either that
               [r]espondent has any significant amount of money or assets, that any payments had not
               been made, or anything else. Petitioner stopped with the invocation of the [f]ifth
               [a]mendment, and that is what is fatal to [p]etitioner’s argument in this [c]ourt.”
               (Emphases in original.)
       Respondent’s argument attempts to shift the burden back to petitioner. We decline to adopt his
       position.
¶ 19       On this point, we find the United States Supreme Court’s decision in United States v.
       Rylander, 460 U.S. 752 (1983), instructive on whether a party may shift the burden back to the
       party alleging contempt after the prima facie case of contempt is made. In Rylander, the
       respondent was ordered to appear in front of an agent of the Internal Revenue Service and
       produce corporate records for inspection. Id. at 754. Respondent appeared before the agent but
       did not produce the records. Id. The district judge issued an order to show cause why the
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       respondent should not be held in contempt. Id. At the contempt hearing, the respondent took
       the stand and verified an “Oath in Purgation of Contempt” he had earlier submitted to the
       court, which stated he neither possessed the records nor disposed of them to any other person.
       Id. The respondent thereafter refused to submit to further questioning, asserting his
       fifth-amendment privilege. Id. at 754-55. Accordingly, the district court held the respondent in
       contempt, finding he had failed to introduce evidence in support of his claim he was unable to
       comply with the order. Id. at 755.
¶ 20        The Ninth Circuit reversed the district court’s order holding the respondent in contempt. In
       doing so, the court “agreed that the Government, in a contempt proceeding, meets its initial
       burden by showing only a failure to comply and the burden is then on the [respondent] to come
       forward with evidence showing ‘categorically and in detail’ why he is unable to comply.”
       (Internal quotation marks omitted.) Id. The Ninth Circuit concluded, however, a respondent
       need not meet this burden where he has a legitimate fifth-amendment claim that his testimony
       about those documents might be incriminating. Id.
¶ 21        The Supreme Court reversed the Ninth Circuit’s decision, explaining:
                “[W]hile the assertion of the Fifth Amendment privilege against compulsory
                self-incrimination may be a valid ground upon which a witness such as [respondent]
                declines to answer questions, it has never been thought to be in itself a substitute for
                evidence that would assist in meeting a burden of production. We think the view of the
                Court of Appeals would convert the privilege from the shield against compulsory
                self-incrimination which it was intended to be into a sword whereby a claimant
                asserting the privilege would be freed from adducing proof in support of a burden
                which would otherwise have been his. None of our cases support this view.
                     We have squarely rejected the notion, apparently subscribed to by the Court of
                Appeals, that a possible failure of proof on an issue where the [respondent] had the
                burden of proof is a form of ‘compulsion’ which requires that the burden be shifted
                from the [respondent’s] shoulders to that of the government.” Id. at 758.
       We acknowledge the factual circumstances in Rylander differ from those involved here, but
       we nonetheless find the Supreme Court’s language instructive.
¶ 22        In this case, the trial court did not, as respondent posits, hold him in contempt for asserting
       his fifth-amendment privilege. Instead, the trial court held respondent in contempt because he
       failed to meet his burden of showing why he should not be held in contempt. The petitioner met
       her burden of establishing a prima facie case of contempt at the March 20, 2013, hearing. The
       court’s March 27, 2013, written order so reflects. We must presume petitioner presented some
       evidence of respondent’s noncompliance at the March 20, 2013, hearing. At this point,
       respondent had the burden of establishing cause as to why he should not be held in contempt.
       Respondent’s assertion of his fifth-amendment privilege cannot be substituted for evidence
       and does not shift the burden back to petitioner. Respondent is attempting to use the
       fifth-amendment as a sword to defeat allegations of contempt, not as a shield from compulsory
       self-incrimination as it was originally intended. We affirm the trial court’s order holding
       respondent in contempt.

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¶ 23                                   III. CONCLUSION
¶ 24   For the reasons stated, we affirm the trial court’s judgment.

¶ 25   Affirmed.




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