302 Or. App. 800 - State v. Cavanaugh

                               800

           Submitted February 7, reversed March 11, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              KIMBERLY SUE CAVANAUGH,
                    Defendant-Appellant.
              Clackamas County Circuit Court
                   C13030744A; A169307

461 P3d 1103



  Ann M. Lininger, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
  PER CURIAM
  Reversed.
Cite as

302 Or App 800

 (2020)                             801

        PER CURIAM
         Defendant appeals from a judgment of punitive contempt for failure to pay child support. She argues on appeal
that, because the state failed to prove that she received
notice of the default judgment imposing child support, the
court erred in finding that she willfully violated the support order. She also argues that the court erred in finding
that she had the ability to pay child support. Because the
state concedes the first issue, and we find that concession
to be well-taken, we need not address defendant’s second
argument.
         To prove punitive contempt for failure to pay child
support, the state must adduce evidence of “(1) the existence
of a valid court order; (2) the contemnor’s knowledge of the
order; and (3) voluntary noncompliance with the order.” State
ex rel Mikkelsen v. Hill,

315 Or 452, 457

847 P2d 402

 (1993)
(internal quotation marks and citation omitted). The state
presented evidence that defendant had been served with a
summons in the underlying custody case that indicated that
the petitioner in that case would be seeking child support
from her. Defendant did not appear, and a default judgment
imposing support was entered. In seeking to enforce the
child support award, the state had made no contact with
defendant. Defendant presented evidence that she had been
evicted before the default judgment was entered, had been
homeless since, and had had no notice of the existence of
the support award. The state argued that the summons was
sufficient to establish that a support order would be entered.
The trial court agreed with the state and entered a judgment of punitive contempt. The state now concedes that it
failed to prove that defendant had notice of the child support award. We agree and reverse. See

id. at 458

 (“willful”
violation of court order “may be established by proof that
a party had knowledge of a valid court order and failed to
comply with the order”); State v Pearce,

294 Or App 775

432 P3d 1185

 (2018) (court erred in entering contempt judgment
when there was no evidence that defendant had knowledge
of no-contact order).
        Reversed.