What is Contempt of Court?
Posted in Child Support on April 15, 2017
Simply put, contempt of court is defined as a willful violation of a court order. Have you done something that a judge ordered you not to do or failed to do something a judge ordered you to do? If so, you may be in contempt of court, maybe.
Your case is finally over. The final judgment of dissolution modification or paternity has been entered. Property issues have been resolved, alimony awarded and child support calculated. Case over, right? Hopefully yes; however, a good number of folks will have an issue or two after entry of the final judgment (i.e., post-judgment) that will invariably center around the alleged failure of one party to comply with the terms of the final judgment. So there is no confusion, the final judgment includes your marital settlement agreement and parenting plan if you have children as both are ratified and incorporated into the final judgment.
Contempt v. Enforcement
Orders regarding the distribution of property and debt as part of the equitable distribution portion of a Florida divorce are not subject to contempt proceedings. Why? Because we do not have debtors’ prison any longer. You can’t be held in contempt simply because you owe someone money, including your ex-spouse. That said, failing to comply with a portion of a court order regarding property (i.e., you did not transfer a bank account to your ex) subjects you to enforcement proceedings. Essentially, the court can slap you on the wrist but not much more. Yes, it can order you to pay the other side’s attorney fees and costs; order you to make the transfer if the money is still there, freeze an account, authorize you to sign your ex’s name, etc., etc., but it cannot impose the ultimate sanction of jail for failure to comply – no way, no how.
What Matters Are Subject Civil Contempt?
In a word – support. The court has ordered you to pay some type of support: spousal or child support following a hearing. The court listened to the pertinent evidence: In a spousal support case, the length of marriage and relative need and ability to pay of each spouse. A Florida child support attorney and the court system will review several components of the case including incomes, certain child related expenses and the number of nights per year each party will have the children overnight.
Before a court can enter an order of contempt it must hold an evidentiary hearing at which time the moving party (i.e., the party complaining that there was a willful violation of a court order), must present evidence that there was a (1) a clear, unambiguous order to do something (again, usually spousal or child support) (2) that the other party did not comply and (3) that the person has the present ability to pay. If the answer to either is no, the court cannot hold someone in contempt. For purposes of our discussion, we will assume that the order was clear (i.e., you must pay $100 per month in child support – nothing unambiguous about that) and that the other party did not pay. The only remaining issue is whether the nonpayer has the present ability to pay the money owed at the time of the hearing. Sometimes the law creates a presumption of a present ability to pay; for instance, when a party is ordered to transfer a bank account as spousal support and simply chooses not to, there is a statutory presumption of present ability to pay. We will not address the subtle nuances of that presumption in this article. Suffice it to say, if you are ordered to transfer a bank account of any kind, do it.
In the case where there is no presumption of present ability to pay, the moving party must present evidence that the other party does in fact have money available to pay the money owed. What type of evidence is sufficient? Anything that shows they have money. Paystubs, bank statements, the recent trip they took to Hawaii with their new mate. The court doesn’t like it when a party intentionally chooses not to comply with an order and simply wants both sides to comply, period. So, when faced with a person who has not paid and who is proven to have the present ability to pay, what’s the court to do? Remember, the court simply wants each party to comply. So, in matters of child support and alimony, the court will send a message to the offending party: pay up by a date certain or become a guest of the local sheriff’s department. How long you ask? Until you pay. You see, if the court determines there is a present ability to pay, you hold the keys to the jailhouse door – pay up and home you go. Simple as that.
The court cannot enter an order of incarceration unless it makes an affirmative finding of fact that the alleged non-payer has the present ability to pay. Our office recently appealed a Broward judge’s order on that very issue: non-payment of spousal support – husband was supposed to transfer a 401k to his wife as spousal support but liquidated the account and sent her nothing. The court held a hearing, found him in contempt and ordered him to pay “X’ dollars to the ex within a certain period or a warrant for his arrest would be issued. Problem? The court neglected to make a specific finding that he has the present ability to pay the money and, therefore, the order was wrong, wrong, wrong. The ex-wife was represented by a very good lawyer that recognized the error of the judge’s order and in the appellate proceeding admitted that the court was wrong by filing a “confession of error.” The appellate court reversed the order of incarceration and remanded the case back to the trial court (i.e., “you did it wrong the first time, so try again.”).
What About Criminal Contempt – Direct or Indirect?
Direct criminal contempt is a pretty simple concept and a pretty foolish situation to be in. Essentially, the court tells you not to do something (i.e., “stop swearing at the witness when you don’t like an answer.”) Swear again and the court may very well hold you in criminal contempt of court as you have directly violated the court’s order in the presence of the judge. Not a wise decision as judge’s really frown upon that sort of thing. Most judges don’t take too much crap from attorneys or parties. They are too busy and simply want to get through the hearing and decide the issues. Indirect criminal contempt – violate a judge’s order outside his presence.
What’s the Difference: Civil v. Criminal Contempt?
The difference between civil and criminal contempt is the penalty. Civil contempt penalties are imposed to get a party to comply with an order of court; remember, pay up and all is well. A means to prod you into following the order. On the other hand, criminal contempt penalties are imposed to punish a party for a willful violation of a court order. If you are involved in a criminal contempt proceeding, there is no “pay up and go home” card (the “purge”).
Unlike civil contempt proceedings, criminal contempt motions are brought by the court itself or the county prosecutor – the State Attorney. In an indirect criminal contempt proceeding, the court will hold a “show cause” hearing. Remember the hospital scene in the “Godfather” movie when Tom Hagen tells Sargent McCloskey “These men are authorized to carry weapons and are here to protect Vito Corleone. If you interfere, there will be a hearing tomorrow morning for you to show cause why you should not be held in contempt of court.” At the hearing, you must establish that you had a pretty darn good reason for not following the court’s order.
What About Contempt for Not Allowing Timesharing?
This is the most litigated issue when it comes to contempt proceedings. One parent refuses to send the child for scheduled timesharing with the other parent. The other side immediately files a motion for contempt for willful non-compliance with the parenting plan. Remember, the parenting plan is an order or court as it is ratified by the court and incorporated into the final judgment of dissolution.
Here’s the thing: refusing to send a child to scheduled timesharing is not good. To unilaterally (i.e., on your own, no court involvement, no discussion with the other parent) refuse to send a child for timesharing, you must have “proper cause.” Those words appear in the statue dealing with timesharing. Most lawyers don’t even know they’re there. The determination of whether you had “proper cause” is a legal issue determined by the facts presented to the court at the hearing. If the court determines there was proper cause to deny timesharing, no contempt. If not, contempt will be found. The penalty for not sending a child – make-up time. Do it enough and the court may change the timesharing schedule altogether. Sometimes, you’ve got no choice but to take matters into your own hands but those situations are few and far between. Before taking drastic action, call your child custody lawyer. If you don’t have one, get one.
Contempt is a serious matter. Judges do not like when people ignore their orders. Do your best to follow all orders of court but if you have an issue . . . .
“When it’s time to leave (or file or defend motion for contempt) call Steve.”