You Are in Contempt!

Contempt proceedings are tools available to Courts to enforce their orders or a valid order from another jurisdiction.  Agreements between two spouses or ex-spouses are not enforceable by contempt unless the agreements are reduced to writing in the form of an order and signed by the judge of the Court having jurisdiction over the matter.  This is usually the “court of continuing jurisdiction.”

A contempt proceeding is a “quasi-criminal” proceeding.” “Quasi-criminal” means the Court can put you in jail and/or fine you for a violation of a Court order.  The order may be an order of an out of state court if that court had proper jurisdiction over you at the time the order was made.  The phrase also means that you may be kept in jail until you comply with the court’s order.

There are certain essential requirements that must be met as a prerequisite to the  contempt proceedings.

For a Court order to be enforceable by contempt, the order must be specific. That means generally it must answer the “who, what, when, where, and how” questions. The order ideally should state who must perform the specific act, what must be performed specifically, where it must be performed, when it must be performed, and how.  A contempt proceeding may be defended by showing the order is too general and does not give Constitutionally adequate notice of what is expected in the way of conduct. A good rule of thumb is any order containing “wiggle room” is not enforceable by contempt.

If an order is too vague or nonspecific to be enforceable by contempt, courts may clarify their orders to make them enforceable. Clarification means the courts may make the orders more specific but cannot inlarge or lessen the relief previously granted. Remember, the law presumes a court always has the power to enforce its jurisdiction and its orders.

This quasi-criminal proceeding contemplates two different “contempts”. The first type is “criminal” contempt whereby a violator may be punished by fine and or jail for wilful violation of a court order. For instance, in Texas, contempt in a family law matter may be punished by up to six months in jail and a fine of up to $500.

Additionally, the Court may use its coercive power to force compliance with an outstanding Court order. This is referred to as “civil” contempt where the violator is jailed until he or she complies with a valid Court order. This is often done to force compliance with a child support obligation, whereby the violator is told he or she has the keys to the jail in his or her pocket. All the violator has to do to “purge” himself of contempt is to pay what is owed.

A contempt proceeding is much like a criminal trial. The person alleged to have committed the act of contempt has a Constitutional right to remain silent and not give testimony against himsel. He also has the right to counsel. If he cannot afford an attorney, he has a right to appointed counsel. He has the right to confront an cross-examine witnesses against him. However, he does not have the right to a jury unless the punishment sought could exceed a specific period of time or an excessive fine.  Texas for example grants the right to a jury in a contempt matter when more than six months in jail or a fine in excess of $5000 is sought.

If found guilty and sentenced to jail for criminal contempt, you will likely do the time subject to possible “good time” allowances from the Sheriff or a successful appeal to an appellate court.

If sentenced to jail for civil contempt, you will stay in jail until you perform the act or acts required of you, or you convince the trial court or an appellate court that what is required of you is impossible to perform.

If you want to seen enforcement by contempt, hire an experienced attorney who has handled these matters successfully before. There are “tricks” to the hearing that the inexperienced won’t know. For instance, your lawyer should NEVER expect to prove your case for contempt by using the other party’s testimony. If the opposing  lawyer is sharp, the judge won’t hear the other party’s testimony until [a] your lawyer has “rested” his presentation, and [2] the judge decides your lawyer made a prima facie showing for enforcement and got past the other side’s motion for judgment.

Most importantly, remember to try to get an experienced attorney if you are served with a show cause order to appear for a contempt hearing. You will not be successful thinking you can talk your way out of the situation – all you need is an opportunity to talk to the judge. You will likely talk your way into jail.

Tyler Moore is Board Certified in Family Law and Board Certified in Civil Trial Law. He also is a member of the Texas Board of Legal Specialization. Focusing on two areas of law, Tyler Moore can represent you and help you with your divorce.  Tyler practices family law at O’DONNELL, FEREBEE, MEDLEY & KEISER, P.C. To contact Tyler, please email him at Tmoore@ofmklaw.com.

Lee Brochstein About Lee Brochstein

Lee Brochstein is a certified professional divorce coach, blogger, a well-known author and a nationally known expert from her appearances on television and radio talk shows. She enjoys alliteration, Mad Men, Big Bang, mixed breeds, vanilla lattes, red wine and her kids when they aren’t killing each other. Follow her on twitter and Facebook.