Section 6 Contemnor

• Library: Remedies 2006

Once the court order and its violation are established or admitted, the burden is on the alleged contemnor to show facts that will excuse the contemnor’s default. Levis v. Markee, 771 S.W.2d 928 (Mo. App. E.D. 1989). If the defense or excuse is that of inability to comply with the order, the contemnor has the burden of proving the inability, Carrel v. Carrel, 791 S.W.2d 831 (Mo. App. W.D. 1990), that it was real, and that it was not occasioned by the contemnor’s own acts. In re Marriage of Vanet, 544 S.W.2d 236 (Mo. App. W.D. 1976); Robertson v. Johnson, 243 S.W. 215 (Mo. App. S.D. 1922) (further holding that when compliance with the order was shown to have been impossible, the alleged contemnor had prima facie been purged of the contempt, and the burden of the evidence then shifted back to the complainant). It is the burden of the contemnor to show inability to perform the order of the court, not the complainant’s burden to show ability. Carrel, 791 S.W.2d 831.

A problem arises, however, in contempt proceedings arising under § 452.345, RSMo 2000, for failure to pay child support or maintenance. In Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), the Supreme Court of Missouri elected not to...