Rarely will the entry of a judgment by the court be the end of your divorce or custody case. A judge may have awarded you alimony or ordered your ex-spouse to pay monthly child support, but your ex-spouse has thus far refused to pay anything. Or perhaps the judge accepted your parenting agreement, but your ex-spouse has now refused to honor it and is threatening to keep your child in violation of the agreement. When one party is refusing to follow the court’s orders, the court has several means available to encourage compliance.
Contempt of Court for a Florida Decree
“Contempt” is a legal term meaning a refusal to obey a judge’s order, mandate, or decree. Sometimes an act of contempt is flagrant, such as when an ex-spouse defiantly refuses to pay alimony or child support. Other times contempt may be subtle, such as when a judge tells the parties not to bring up certain irrelevant facts at trial but a party tries to do so anyway. In both cases, the party that has disregarded a court order may be found in contempt.
A finding of contempt can carry with it serious legal consequences. These consequences can include incarceration in the local jail, fines, and other sanctions. A court may also order a wage garnishment, if the payment of support is at issue.
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Civil Contempt
Contempt can either be civil or criminal in nature.“Civil” contempt occurs when the court makes an order and a party is able, but refuses, to comply with that order. A finding of civil contempt and the accompanying punishment is typically designed to encourage one party to comply with the order. Before being found in civil contempt, it is important that the court determines that the order was clear and that the party that refused to comply had the ability to do so but deliberately chose not to obey the order.
For instance, consider the case of Brian and Sandy. Suppose the judge orders Brian to pay $300.00 per month in child support. After six months, Brian has not paid a single cent toward his obligation and owes $1,800.00 in past-due child support. Before being found in civil contempt, the court must first examine the order and make sure it was sufficiently clear so that Brian could have understood what was expected of him (how much he had to pay, when payments were due, where payments were to be sent, etc.).
If the order is clear, the court must then examine whether Brian was capable of complying but simply chose not to do so. If Brian exhibited a deliberate attitude, sending messages to Sandy such as “I’ll never give you a cent, regardless of what that judge says,” then it is likely he will be found in contempt. But suppose that after the child support was entered Brian became seriously ill and lost his job. He has only recently recovered and has found a new job, but has not yet been paid. In this sort of circumstance, Brian may not be found in contempt since his non-compliance was not due to merely his unwillingness.
Another important aspect of a finding of civil contempt is the establishment of a “purge” provision. The purge provision is part of the finding of civil contempt and describes how the party in contempt can purge the contempt and avoid further punishment. Suppose again that Brian is found in civil contempt for failing to pay child support and is ordered to jail. Part of the court’s order is that Brian can purge the contempt by paying all past due child support amounts. Once Brian does so, he will be released from jail as he has purged the contempt. But so long as Brian willfully refuses to pay the past due child support (and has the ability to pay the amount), he can still be held in custody.
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Criminal Contempt
Criminal contempt can either be “direct” or “indirect,” depending upon the circumstances.“Direct” criminal contempt occurs when a party disregards a court order in the presence of the court itself. Considering the case of Brian and Sandy again, suppose that the court ordered Brian not to discuss the number or nature of Sandy’s relationships prior to their marriage after finding that such information would be irrelevant to the issue of child custody. If Brian tries to talk about Sandy’s past relationships anyway, the court may find him in direct criminal contempt. Or, if Brian repeatedly engages in disruptive behavior (such as constantly interrupting witnesses or raising his voice), the court can find him in direct criminal contempt if the court told Brian to stop his disruptive behavior.
Indirect criminal contempt occurs when a party fails to comply with a court’s order outside of the presence of the court. Suppose that the court orders Brian not to contact Sandy directly, but he does so anyway. He may be found liable for indirect criminal contempt. Or suppose that, in an attempt to better his legal position, Brian attempts to bribe Sandy’s attorney or a witness in the days before trial. This behavior, too, may lead a court to find Brian in indirect criminal contempt of court.
Similarities and Differences Between Civil and Criminal Contempt
Both civil and criminal contempt are punishable by fines, imprisonment, and other sanctions. This is true even though the purpose of the two types of contempt are different: Whereas civil contempt is designed to coerce or encourage the party in contempt to follow the court’s orders, criminal contempt is designed to punish a party for failing to comply with an order.
Also, both civil and criminal contempt is shown through the use of sworn testimony in court. That is, it is not enough that a party simply alleges on paper that another party hasn’t complied with a court’s order. Instead, the testimony must be sworn to in court or evidence of the contempt must be presented in court where the judge can examine it.
But here are important differences between civil contempt and criminal contempt. First, unlike civil contempt, there is no “purge” provision to a court’s criminal contempt finding. Instead, the court orders some sort of fine, jail time, or other sanction as punishment for the contempt. Whereas Brian may have been able to purge the civil contempt by paying all past due child support amounts, once he has been found in criminal contempt of court for his disruptive behavior, he cannot avoid the court’s punishment or sanction.
Another important difference relates to who prosecutes contempt proceedings. Criminal contempt proceedings are initiated either by the court or by a criminal prosecutor and the judge may prosecute the case with or without the help of a prosecutor. But civil contempt proceedings are brought by the party who has been affected by the other party’s failure to obey the court’s order. The party is also responsible for presenting evidence and showing that the other party should be found in civil contempt. Brian’s failure to pay child support can result in indirect criminal contempt findings. But unless Sandy’s lawyer initiates civil contempt proceedings, Brian will not be found in civil contempt of court.
Lastly, in indirect criminal contempt proceedings, a “show cause” hearing must be held before a party will be found in contempt of court. The purpose of the “show cause” hearing is to allow the party against whom the contempt proceedings are initiated to present evidence or testimony to the court as to why he or she should not be found in contempt and punished. Suppose that Brian is accused of indirect criminal contempt for failing to obey the court’s order and contacting Sandy directly. Before he can be found in indirect criminal contempt, the court schedules a “show cause” hearing. At this hearing, the court receives testimony from Sandy concerning Brian’s telephone calls to her in spite of the court’s order. But Brian has the opportunity to question Sandy as well, bringing out the fact perhaps that Sandy initiated the contact and requested Brian contact her to discuss issues regarding the children. Brian also has the opportunity to testify himself or present evidence that would show there was some emergency or other extreme circumstance that justified him contacting Sandy. This may convince the court that it is inappropriate to punish Brian for criminal contempt.
Limitations of the Court’s Contempt Powers
There is at least one circumstance in which the court’s contempt powers are ineffective. Where the court order that has been disregarded is an order for a property settlement award or equitable distribution award, the court is prohibited from imprisoning the noncompliant ex-spouse for failure to follow these court orders. Equitable distribution awards can take on several forms. A court may order one party to pay another a specific amount of money in order to make a “fair distribution” of the marital estate. Or a court may order one party to pay a marital debt. When the party is directed to fulfill either of these orders and fails to do so, for example, the court cannot use its contempt powers.
The reason for this comes from the Florida Constitution, which prohibits courts from imprisoning individuals for non-payment of a “debt.” Equitable distribution awards are often characterized as “debts”; therefore, the courts are not able to imprison non-compliant ex-spouses under these circumstances. This is in contrast to alimony and child support awards, which are considered forms of support and thus can be enforced with the court’s contempt powers.
What is a party to do when an ex-spouse refuses to pay an equitable distribution award? Unfortunately in this circumstance, the party expecting payment is placed in the same position as a creditor attempting to collect a debt from the noncompliant ex-spouse. This does not mean that there are no means by which the payment can be collected; rather, it simply means that the court cannot order the non-compliant ex-spouse to prison as a means of coercing compliance.
Note, though, that where an equitable distribution award is more in the form of an act (rather than an order to pay money), civil contempt is available. Thus, if the court orders one party to execute and deliver documents, to name the ex-spouse as a beneficiary on an insurance policy, or sign a sales contract, a party may be found in civil contempt if he or she refuses to do so.
Enforcing Your Rights in a Florida Divorce
Despite the initial nature of your divorce, feelings, and attitudes can change. When they do, what started off as an amicable separation between two mature adults can quickly devolve into a nightmare. Your ex-spouse may have been very cordial and pleasant throughout the divorce proceedings, but now that the court has ordered him or her to pay support, or property was not divided in the way that he or she wanted, he or she has become difficult to deal with.
It is important to understand what can be done when your ex-spouse refuses to comply with a court order. In certain situations, you may be able to have the court find your ex-spouse in contempt. The court may then utilize its civil contempt powers to fine or sanction your spouse, or have him or her incarcerated until he or she complies with the court’s orders. Not only this, but the court can find the non-compliant ex-spouse in criminal contempt when the ex-spouse fails to follow the court’s orders in court or otherwise disrupts the court’s proceedings.
But a finding of civil contempt is not automatic. When you believe that your ex-spouse has not followed the court’s orders in paying alimony or child support, it is important to seek the advice of an experienced Ayo and Iken family law attorney who knows how to properly bring the issue before the court. Certain procedural rules must be followed before a court can find someone in contempt, and evidence must be presented in a particular way in order for the court to be able to consider it in determining whether to use its contempt powers. A skilled attorney can help you in using the court’s contempt powers to obtain the support you are entitled to and to coerce the noncompliant spouse into following the court’s rulings.