Contempt is a power of the court that it uses to enforce its own orders. When you are hurt by your spouse’s disregard of a court order, one solution is to prove your spouse in contempt. A court ruling that your spouse is in contempt has considerably more impact than an award of attorney’s fees and costs for being unreasonable. Contempt can result in jail time, not just fines. A citation of your spouse for contempt in a divorce action also hangs over your spouse like a dark cloud, presenting him, rightly or wrongly, as the person wearing the black hat in any later disputes.
The court is naturally motivated to control its own proceedings. Thus, the well known, "Stop, or I’ll hold you in contempt!" that may be spoken by the judge during the course of a court hearing. You’re not nearly as concerned about finding someone in contempt for violating an order in the courtroom itself. The court is very good at taking care of that.
Your natural concern is about out-of-court violations of orders. Proving that your spouse is violating an order out of the court’s presence is a powerful way of enforcing your orders. While the vast majority of cases never involve contempt, you should know what an out-of-court violation of a court order looks like and how to seek a contempt citation for it. Let’s look at the hurdles involved.
Persons accused of contempt are entitled to constitutional protections. For example, someone won’t be held in contempt for violating an order that is capable of more than one meaning. Assume that a certain child support order requires the Husband to pay the Wife Five Hundred Dollars per month. Wife says support is due on the first; Husband says the tenth, when he gets paid. The Husband can’t be in contempt for non-payment until the end of the month: with no specific date, the obligation is payable that month.
Husband also can’t be in contempt if he doesn’t know about the order, for example, because he wasn’t in court and never received a copy. An order such as "Husband shall pay Wife the sum of Five Hundred Dollars for child support on the first day of each month, beginning March 1, 1992," when personally served on the Husband, is enforceable by contempt.
A person cannot be held in contempt for violating an order he or she doesn’t have the ability to comply with. If Husband doesn’t have any money available, he can’t be found in contempt even though a valid, specific order was personally served on him. Note the distinction: Husband still owes the money, but he can’t be punished for not paying it if he was not able to comply with the court order through no fault of his own.
You are the “moving party” and have the burden of proof when you ask the court to find someone in contempt. It is your presentation, not the court’s. A complete mini-trial is involved. The expense is significant, although you will get an order for your reasonable fees and costs if you prove the contempt.
Don’t consider bringing anything other than an absolutely solid case when you allege contempt. Your opposition will be uncommonly vigorous because of the stigma of the citation and the possibility of going to jail. Be prepared for your spouse to raise defenses that you never imagined in order to excuse noncompliance with the order.
Nonpayment of court-ordered support is the most common contempt action. It’s easier to prove than other violations and directly seeks to recover the unpaid support. However, make sure you have the facts to show your spouse could have paid the support.
My new client John hadn’t been very smart in choosing the way to get back at Nancy. He came to me for the first time after a two-day hearing that found him in contempt for nonpayment of support for ten months. His ex-wife Nancy had testified as to the amount of support received. The court took notice of its own support order, and of the proof of service in its file showing John had been served with a copy. John raised the defense he had lost his job. Nancy’s attorney agreed John had lost one of his jobs; however, John still had his business and liquid investments sufficient to pay the support. John’s defense crumbled because Nancy’s attorney had the records to show that John had the ability to pay the court-ordered support.
John was given a chance by the court to cure the contempt, as is usually done, by paying the entire amount within thirty days. Otherwise, he would go to jail for a period of time to be determined at the next hearing. John quickly paid the back support plus thousands in attorney’s fees and costs.
John was now marked as the one who wore the black hat. He was the bad guy who had already been held in contempt "once." It took years to place that black hat on Nancy, where John thought it had belonged from the beginning.
A less common contempt action is brought when a person violates personal restraining orders. For example, Husband and Wife are ordered to stay away from the other’s residence and place of business. Such orders are quite common, but thankfully the strong language of the orders, the written warnings, letters demanding compliance, warnings by attorneys, court appearances, warnings by the judge and calls to the police before moving to a contempt citation have all operated to reduce the percentage of such orders that are actually violated.
One essential problem with restraining-order cases is they don’t bring in money and are harder to prove than support cases. "I was only there because she invited me (contrary to the order)," he said. "No, I didn’t!" she replied. A “lying contest” between spouses in a divorce case is not the way to prove contempt. Should you be considering alleging a “personal feud” as a citation for contempt, remember that you need credible, usually disinterested, witnesses to win.