CONTEMPT OF COURT
My Cousin Vinny is one of my all-time favorite court movies right behind To Kill a Mockingbird, and it is a humorous example of how someone can be held in contempt of court. But all kidding aside, being held in contempt is no joke. The result of willfully violating a court order in Family Court is being found in contempt followed by jail time.
There are two types of contempt in family court, criminal contempt and civil contempt. The purpose of criminal contempt is to punish the person for violating the order. The purpose of civil contempt is to force compliance with the court order. Criminal contempt usually occurs in the court room and within the sight and hearing of the judge as in My Cousin Vinny. Civil contempt is indirect and occurs outside of the courtroom. When consulting with an attorney about contempt, you need to let the attorney know which type of contempt is appropriate for your situation. A person cannot be held in criminal and civil contempt for the same act. If your goal is to have opposing party comply with the order, for example, pay the child support, then civil contempt makes more sense. If you want to punish opposing party because they did not return the children as specfied in the visitiation order then criminal contempt is more in line.
So what happens in criminal contempt? One, there must be probable cause that the violation occured. The probable cause has to have sufficient facts to show the opposing party had the ability to comply at the time the violation occurred and has the present ability to comply. Two, once there is probable cause, the opposing party has a right to court appointed counsel for his/her defense. The court appointed counsel has to show that the opposing party did not have the ability to comply and that any violation was not willful. However, to avoid self incrimination, the opposing party cannot be made to testify. Some other witness or form of evidence will have to be used. (Note: if you accidentally call the opposing party to testify, you cannot proceed with criminal contempt, only civil). Three, the Standard of Proof is beyond a reasonble doubt. Four, the respondent must come to court unlike civil contempt. Five, if the opposing party is found in criminal contempt, the court can impose a jail sentence up to 30 days, fines up to $500.00, a probationary sentence, and any other remedies allowed by law such as reimbursements. Six either party has the right to appeal to Superior court. Seven, you cannot ask for attorney fees in criminal contempt.
How is Civil different from Criminal? One, in civil contempt the Standard of Proof is by the preponderance of the evidence. Two, opposing party is not required to be present in civil contempt. Three, except for child support cases, there is no right to counsel in civil contempt cases. Four, the opposing party can be called to testify by you. If opposing party pleads the Fifth against self incrimination, that non-answer will be treated as an affirmation/yes answer. Five, if the opposing party is found in willful contempt, the only thing the court can do is jail time for an indefinite period of time until a purge payment has been made. The purge conditions must be clear i.e. must pay $500.00 in order to get out of jail. The court cannot modify the prior order, and nor can the Court order fines and restitution. Six, either party can appeal to the Court of Appeals only if a substantial right has been affected.Seven, you can get attorney fees in Civil Contempt.
Contempt motions can be a very powerful tool if used correctly. The wrong type of contempt action may end up being denied. For example, if you file for contempt regarding a custody order, and the child is 18 years old at the time of the hearing, then there is no order to enforce and therefore the contempt request will be denied. If you plan to pursue a contempt action, do not hesitate to contact us.