Contempt of Court & Violation of Orders

What is Contempt of Court?

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Contempt of court means to willfully disobey a court order or willfully disruptive a court proceeding. Contempt of court may be classified as either criminal contempt, or civil contempt. The important difference between criminal contempt and civil contempt has to do with their associated remedies and penalties.

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Civil Contempt in Family Law: Civil contempt of court is the preferred charge in family law cases when a party willfully disobeys a court order, such as an order to pay child support or spousal support. When a family law judge finds a party in civil contempt of court the judge will design court orders necessary to prevent further disobedience of those orders.

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For example, a family law judge may order a defendant to be locked up in county jail for his or her willful failure to pay court-ordered child support. The amount of time the defendant is in jail is up to him or her. This is because the judge may order the defendant to be locked up until he or she actually pays the child support as ordered. In other words, the defendant to civil contempt charges is often said to “hold the keys” to his own jail cell.

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Note: A family law judge may also punish a person for civil contempt of court (as opposed to making orders designed to cure the defendant’s behavior). The jail punishment for civil contempt of court is up to five (5) days per violation of the court’s order.

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For example, a family law judge may order the defendant to spend five (5) days in jail for her willful failure to pay court-ordered spousal support, and if she does pay the court-ordered spousal support before the five (5) days of jail has been served, she may nevertheless be ordered to finish her five (5) day jail sentence. This is because the judge ordered the jail sentence as a punishment, as opposed to sending the defendant to jail in an effort to correct her contemptuous behavior.

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Note: The family law judge may sentence the defendant to consecutive jail sentences as a punishment for multiple violations of the court’s order(s).

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For example, if ex-husband is ordered to pay spousal support every month, and he willfully fails to pay the court-ordered spousal support for four (4) months, then the court may sentence the defendant to a total of twenty (20) days in jail for his willful violations of the court’s order (four violations of the court’s order, times five days of jail for each violation, equals twenty (20) days in jail).

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Sentence Difference from Criminal Court: A family law judge may sentence a defendant in a contempt of court case to no more than five days of county jail for each violation of the court’s order(s). The criminal law judge has discretion to sentence the defendant in a criminal contempt of court case to one hundred eighty (180) days of county jail per violation of the court’s order.

 

However, if the family law judge has sentenced the defendant to jail as a punishment for his or her contempt of court, the criminal court judge could be barred from hearing the defendant’s contempt of court case. This is because the doctrine of Double Jeopardy does not allow a state prosecutor to file a subsequent criminal prosecutions that arises from the same set of facts that lead to the defendant’s punishment in family law court (some exceptions apply for non-criminal contempt of court in family law court).

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Criminal Contempt: In family law court, criminal contempt is usually reserved for willful failure to pay court-ordered child support or spousal support, or for willful disobedience of a court proceeding. However, if the defendant is alleged to have violated any family law court order (i.e. order to attend mediation, order to transfer community property, etc.), the judge, or the opposing party, may file contempt charges against the defendant.

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A stated, criminal contempt of court carries much longer jail sentences than civil contempt. Criminal contempt is charged as a misdemeanor under penal code section 166(a) and may also have an impact on a party’s immigration status, professional licensing status, revocation of active probation on prior cases, and more.

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Also, criminal contempt may carry probation sentences and harsh terms that have no relationship to the payment of child support or spousal support.

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Types of Orders Related to Contempt

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Civil contempt of court charges are often filed in family law cases against a party who willfully disobeys a court order to do any of the following: pay child support, pay spousal support, pay family support, comply with child visitation schedules, deliver property to opposing party, make reasonable efforts to search for a job, comply with domestic violence restraining orders, or to comply with the rules of evidence discovery.

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Filing a Motion for Contempt

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Before a defendant may be found in contempt of court (civil or criminal) for willful disobedience of a court’s order, the prosecuting party (plaintiff) must prove four elements:

 

• There is an unambiguous court order in place,

• The defendant was aware of the court order,

• The defendant willfully disobeyed the court order, and

• The party alleging contempt has given the defendant an opportunity to comply with the court order.

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Contempt Procedure: Asking the court to find the defendant in contempt of court in a family law case requires the plaintiff to file an affidavit of contempt and declarations in support of his or her allegation. It will also require in-court presentation of evidence (i.e. proper legal court procedures, proper use of evidentiary rules and objections, etc.).

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A party in a contempt action should not attempt to prosecute or defend his or her case without the assistance of a family law attorney who has prosecuted or defended contempt of court cases and who is also familiar with criminal defense procedures.

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Remember, the plaintiff has the burden of proof in a contempt of court case and the family law judge is not lenient on the rules of court, California law, or evidence procedures, just because the plaintiff is not familiar with the law.

 

Also, a defendant's statement in a contempt of court case may be used against him in both criminal court and in family law court.

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Contempt of Court Forms: The common forms required to start or defend a civil contempt court may be found at the Judicial Counsel of California, or by requesting the required court documents from the court’s clerk.

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Contempt of Court Penalties

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A judge who holds a defendant in civil contempt may design just about any orders necessary to encourage compliance with the court’s original order that was disobeyed. Common orders designed to encourage compliance with a court’s previous orders include: monetary fines and penalties, award child custody to opposing party, garnishment of wages (support cases), place liens on property, order sale of property to pay for child or spousal support, order the payment of opposing party’s attorney fee, garnish bank accounts, garnish pension or disability benefits, garnish unemployment benefits, place a lien on lottery winnings, grant unequal division of community property, and more.

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Note: California law provides that civil law judges may add up to five days of jail for each act of civil contempt without granting the defendant the right to a jury trial. This punishment is in addition to any other non-incarceration orders designed to encourage compliance with the court’s orders. In child support and spousal support cases each willfully missed payment is considered a separate act of civil contempt.

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Criminal Contempt Sentence: When a judge finds someone in criminal contempt of court the judge will seek to punish the defendant with fines and/or jail sentences; but the judge may also craft probation-type orders that encourage the defendant to comply with the court's previous orders.

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Note: In family law court, criminal contempt of court may be charged for willful disobedience of a court order as well, but, as stated, civil contempt of court is usually the preferred charge because defendants who are incarcerated for longer periods of time (common with criminal contempt) are not available to comply with the family law court’s orders to pay child support, pay spousal support, comply with child visitation, etc., which is further detriment to the child, spouse, etc.

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Other Penalties for Contempt of Court Include: Revocation or suspension of the defendant’s driver’s license (for willful failure to pay child support or spousal support) and/or revocation or suspension of the defendant’s professional license, i.e. doctor, dentist, therapist, lawyer, etc. (for willful failure to pay child support or spousal support).

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Defense to Civil Contempt of Court

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Common defenses to a charge of criminal contempt include, but are not limited to: insufficient evidence to prove defendant willfully disobeyed a court order, ambiguity in the court’s order, mistake of fact, statute of limitations, inability to perform, and more. In addition to these common defenses, most courts will allow the defendant to purge the contempt by fully performing the original orders.

 

For example, if a former husband falls three (3) months behind on his spousal support payments to his former wife, and thereafter, the former wife files an action for three counts of contempt of court (one contempt charge for each missed spousal support payment), the judge may allow the former husband to purge (fix) his contempt by allowing him to pay all three months of spousal support before the contempt of court proceeding commences. Under this circumstance, the judge will also usually add an additional penalty to the original order, such as the payment of plaintiff's attorney's fees, if any.

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Note: If a party is claiming that he or she has the inability to pay child support or spousal support, or is unable to secure employment, he or she should keep records related to employment searches. The party should also be ready to explain why he or she did not request to modify the court's order for a reduction in child support or spousal support when he or she knew that he or she was unable to pay the amount ordered. 

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Due Process for Civil Contempt

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When a defendant is served with a notice to attend court on allegations of willful failure to obey the court’s orders (civil contempt), the defendant has procedural rights. These rights include, but are not limited to: The right to receive proper notice of the time and place of the court hearing and the exact allegations of contempt alleged, the right to present evidence, the right to be heard or remain silent, the right to cross-examine witnesses, the right to be represented by an attorney (for criminal contempt of court), and in some cases, the right to a jury trial (for criminal contempt cases).

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If you have been charged with contempt of court in a family law proceeding contact our family law attorneys without delay for a free consultation. Our attorneys are experienced in both criminal and civil law contempt prosecution as well as criminal defense. We have full time family law and criminal defense lawyers ready to help you. Call today!

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909-307-2645

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