Under those circumstances, I don't believe I can find from the facts as presented thus far that there was, in fact, a willful disobedience of a court order. And so contempt would not be appropriate. Husband concedes that the evidence established the first two elements. However, the parties disagree as to whether the evidence was sufficient to establish husband's voluntary noncompliance with the judgment. Husband contends that wife failed to establish that he was able to comply with the judgment and, therefore, did not prove that his noncompliance was voluntary.
Wife correctly responds that husband's inability to comply was an affirmative defense.
Wife argues that the trial court mistakenly assigned to her the burden of disproving husband's defense and, thus, erroneously granted husband's motion to dismiss at the conclusion of her case. For the following reasons, we agree with wife that the court erroneously granted husband's motion. That rule applies to proceedings for remedial contempt. We conclude that wife established a prima facie claim of contempt. The defendant, who had invoked his right to remain silent at trial, argued that the state had not proved that his noncompliance was voluntary.