Enforcement and Contempt of Court

Enforcement and Contempt of Court

Two types of Civil Contempt:  Direct and Indirect

The Court always has the power to enforce the orders it has made through proceedings for contempt, which will be designated as “remedial” or “punitive”.  Remedial Contempt, is where the court finds the non-compliant party has the ability to act as ordered, but has failed to, and imposes penalties conditioned upon the party becoming compliant.  Punitive is where the court finds, beyond a reasonable doubt, that the actions of the party are willful and in defiance of the court’s authority and imposes unconditional penalties such as jail and a fine.  Both avenues are powerful tools, and should be used appropriately.

Direct contempt

This is an action or behavior “that the court has seen or heard and is so extreme that no warning is necessary or that has been repeated despite the court’s warning to desist.”  Normally, it may be punished immediately.  The most common examples of direct contempt include appearing at a hearing under the influence or talking back to the judge.

Indirect contempt 

This is far more common, and it is an action or behavior that occurs outside the presence of the Court.  This can include a failure of one person to pay marital debts, or child support, failure to abide by a separation agreement or parenting plan, or other court order.  Any disobedience of a court order can be sanctioned via contempt.  In these situations, a party files a Motion for Contempt alleging what behavior has occurred and requesting relief from the Court.  The requested relief typically involves remedial and punitive sanctions.

Remedial sanctions

These are sanctions designed to encourage further cooperation with the court orders. They are not a form of punishment.  In order to succeed with a remedial contempt motion, a party has to prove the existence of a court order, that the other person had knowledge of this court order and failed to comply.  Remedial contempt also requires a present ability to comply with the court order.  The standard of proof is a preponderance of the evidence.  The sanctions for remedial contempt can be varied, but it can include a jail term until the person complies with the court order.  Costs and attorney fees may be awarded as well.

Punitive sanctions

These are those sanctions that are designed to punish for conduct that is found to be offensive to the authority and dignity of the court.  If a person is indigent, they may have the right to court-appointed counsel to assist them because there is a threat of jail time.  The maximum jail sentence is six (6) months, unless there is a jury trial.  Just like in a criminal trial, the person is presumed innocent and the standard of proof required is beyond a reasonable doubt.  There is also a right to remain silent and to cross-examine witnesses.  In order to succeed with a punitive contempt motion, a party has to prove the existence of a court order, that the other person had knowledge of, and that they did not comply with.  Punitive contempt also requires proof of a willful refusal to comply with the court order.  The Court has the authority to impose a fine or a fixed jail sentence if it determines that the person willfully violated the court order.

 

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