What is Contempt of Court in Family Law?
Contempt of court is a legal concept that allows the courts to enforce their orders and ensure compliance with the law. In the context of family law, contempt of court plays a vital role in ensuring that court orders are followed and can be a useful tool in dealing with noncompliance. Contempt can arise when one spouse refuses to pay child support, fails to pay alimony, or otherwise violates an order of marital settlement. Courts take violations of court orders very seriously and may impose sanctions on parties who violate court orders.
What does contempt of court mean? It is important first to understand the different kinds of contempt. Criminal contempt is designed to punish someone who violates a court order. Civil contempt is used to coerce a person to comply with a court order. The most common use of contempt of court in Arizona family law is with regard to a potential noncompliance with a spousal maintenance obligation. A violation of a spousal maintenance order is contempt of court. So is a violation of a child custody order. However, there are various forms of contempt in Arizona family law, which is why the assistance of an experienced family law attorney may be necessary.
One of the common situations in which ministers of the court use contempt in Arizona is when a party does not pay the other spousal maintenance or child support . This can become problematic since violations of spousal maintenance obligations are punishable by civil contempt, while a party’s failure to pay child support can be punished by a contempt charge. For example, suppose a parent is ordered to pay support in the amount of $400 per month. If a parent pays $200 per month for several months, the party will likely be held in contempt because this equals non-payment of support. However, if a parent pays his or her spouse $200 per month under what was informally agreed to by both parents; and then later fails to pay the remaining $200, the parent will likely not be found in contempt because there is not a clear obligation under the original order. But, because the two parties are living a lifestyle to what they informally agreed, if it is discovered that they were only intended to live at such a lifestyle after their youngest child graduated from high school, and the lifestyle is very expensive, the court could order that party to pay the other spouse alimony.
As I’ve mentioned, pursuant to a court order, parents are obligated to pay child support. When a parent fails to pay child support because he or she is purposely violating the order, this is contempt. However, if the nonpaying parent has a good faith defense; for example, if that party lost his or her job, was unable to find a new job, and is living paycheck to paycheck, most likely a court will not find that party in contempt.
Types of Contempt in Arizona Family Law
There are two main types of contempt actions in Arizona family law cases. The first, and most common, is civil contempt and the second is criminal contempt.
Civil Contempt
"A court may punish civil contempt on proof by clear and convincing evidence that the non-moving party has failed to comply with the terms of a court order." In re Marriage of Demierer, 203 Ariz. 1, 2, ¶ 5, 49 P.3d 22, 23 (2002). The purpose of civil contempt is to compel a party to comply with a court order. Id. It must be shown that there was a clear and specific court order requiring the party to do or not do a specific act. Id. "In examining an order for compliance with a court order, the trial court must consider (1) whether the order gives fair and reasonable notice of what is required or prohibited; (2) whether the order has been violated; and (3) whether the violation was willful." Id. at 2, ¶ 6, 49 P.3d at 23. Court orders must be in a form that would allow a reasonable person to understand exactly what is required, thus providing fair and reasonable notice. Id. at 2, ¶ 7, 49 P.3d at 23. "Ariz. R. Civ. P. 83(b)(6) allows a trial court to enforce its orders by contempt proceedings, and a court may use civil contempt to force a party to be in compliance at the time the order is issued." Id. at 2, ¶ 5, 49 P.3d at 23. In other words, civil contempt allows a court to force a party to comply with a court order for any future violation of that order. Because the purpose of civil contempt is to compel compliance with an order, courts require a party’s compliance before the contempt is purged. Id.
Criminal Contempt
Criminal contempt is a punitive remedy for a past violation of an order which may result in a fine, jail time, or other criminally punitive measures. Id. Criminal contempt "requires that the conduct of the person to be held in contempt be willful." Id. at 3, ¶ 13, 49 P.3d at 24. In criminal contempt, the court must establish that the alleged contemnor willfully violated and thereby disobeyed a direct order of the court. Id. A court may only punish criminal contempt when the contempt is an affront or insult to the court, interferes with the court’s ability to administer justice, or diminishes the authority and dignity of the court. State v. Kelly, 121 Ariz. 166, 169, 589 P.2d 457, 460 (1979). "An offense is not a crime unless the facts as found are such as to constitute a violation of law. It is the misconduct which constitutes contempt which must be specified in a complaint and alleged to have been committed within the limits of the law." Id. at 170, 589 P.2d at 461. Criminal contempt requires the court to show beyond a reasonable doubt that there was an intentional and willful violation of a specific court order. Id. Civil and criminal contempt share many of the same legal concepts and procedures. Id. at 173, 589 P.2d at 464. However, criminal contempt is a separate and distinct offense than civil contempt, and the consequences of criminal contempt are punitive rather than coercive. Id.
Common Examples of Contempt in Family Law Cases
Contempt of court in Arizona family law cases is frequent. Typically, we see it in child support modification cases, custody or parenting time disputes, or protective order violations. For example, the most common reason for contempt is failure to pay child support. Arizona child support guidelines calculate the amount of child support a party must pay, visitation and parenting time do not affect the child support amount. When parties do not pay child support at the amount calculated by the guidelines, we see numerous contempt actions filed. The standard by which a finding of contempt is made in Arizona family law cases is clear and convincing evidence that the party knew the order was clear, specific and mandatory; and that the party had the ability to comply with the order and willfully failed to do so. Child support is one of the few things that, in most cases, can be garnished from wages. If a paying party is not paying child support as ordered by the court, we often find that the support is being deducted from one or more of the parties’ wages. When that is the case, the receiving party is sometimes left to file a request for a contempt hearing when the payor is not paying and the money is being withheld from the payor’s wages. Well heeled parties can pay a lot of wages out of pocket and by the time we get to the hearing the parties are at odds and regardless of whether the non-payment was volitional. Similar to child support cases, we also commonly see parties filing contempt actions for not complying with parenting time orders. In all Family Courts across the state, if a party does not appear for a parenting visit, absent some undeniable reason, they are going to be ordered to pay "make up time." A party cannot unilaterally deny parenting time and not be required to offer make up time. Therefore, we see parties filing contempt actions when they refuse to offer make up time. The problem arises when the offending party does not have the means to perform the make up time. For example, they may have moved out of state or be in a new job where they cannot take off each other other weekend. Another very common basis for contempt is violation of a protective order. A protective order can be issued against a party who has had contact with another party which is threatening or harassing. It can also be issued when there is a history of domestic violence. A protection from order can order the recipient to stay away from or have no contact with the protected party. If that order is violated, a contempt action can be initiated and the court may order that the violating party be arrested. In Arizona, there are two levels of safe zones. A level 2 safe zone orders the parties to keep a distance of 500 feet. The law states that a person can enter a level 2 safe zone for six minutes. After that time (if the person does not leave), a law enforcement officer can arrest the person. Level 1 orders prohibit contact. There are no safe zones. If a person contacts the protected party, they can be arrested.
Legal Ramifications for Contempt in Arizona
Legal Consequences of Contempt in Arizona Family Law
When a party is held in contempt, the court will usually have a hearing to determine what sanctions are appropriate. The goal in most cases is to encourage compliance and to make the other party whole for any damages incurred as a result of the contemptuous behavior.
Judges have broad discretion in deciding what sanction to impose for contempt. In most contempt proceedings with regard to custody orders, the judge will consider whether sanctions are necessary and appropriate based on all the circumstances. Most people who are found in contempt in custody proceedings will not face jail time or other harsh consequences. Instead, the judge will normally order the contemptious party to comply with the underlying order and to pay for any damages related to the contempt. If the party continues to disobey the order, the court may enter further sanctions up to and including incarceration, but incarceration is used as a last resort in most cases.
In some cases, the judge may issue a fine or community service instead of custody or parenting time . When looking at whether to impose community service as a sanction for contempt, the court will look to whether the party had the financial means to pay child support but willfully did not do so.
Because the courts will usually not incarcerate litigants in custodial matters, they instead may change visitation in a contempt matter to be supervised or at a more protected location such as a Family Visitation Center. There are several levels of supervision that will be considered by the Court including supervised visits at a Family Visitation Center (FVS), in neutral territory, or in the home of the custodians to be monitored as to the "effectiveness on the minor child."
When addressing contempt of Court in Arizona family law matters, the Court will look to the seriousness of the contempt, the prior history of the party found in contempt, and the extent of the contempt. The courts will also consider the best interests of the minor child in contempt matters because a contempt finding in a custody matter affects the minor until they reach adulthood.
Responding to an Allegation of Contempt
How to Address Contempt Allegations in Arizona Family Law Cases
If an individual has addressed a court order and does not believe that they have violated the terms the order can be held in contempt for alleged violation of the order even when the responding party does not believe there was a violation. As such, contempt allegations should be taken seriously and responded to as soon as possible to avoid the imposition of sanctions. One of the first ways to address an allegation of contempt is to ensure that the allegations are specific against the responding party. General allegations are often insufficient to move forward with contempt as the order that is being alleged to have been violated must be specific and well drafted enough to ensure that the responding party understands the obligations as far as complying with the order. It is also important that the order is specific as to what is required to prove contempt.
Following the receipt of an Order to Show Cause from the court, it is critical that the responding party respond by attending the Order to Show Cause hearing with proof that they have complied with the order. This includes information such as bank statements, receipts, invoices, and other documentary evidence as to any payments that may have been made. If there is a concern that there is a potential for a sanction, such as a fine or attorneys’ fees, one option for the moving party is to specifically ask the court to impose sanctions if a finding of contempt is made. An allegation will be made to the court that contempt will be assessed against the responding party if the court finds the responding party in contempt. The requesting party should also come prepared with what sanctions they are requesting.
The most critical step in dealing with contempt allegations after receiving an Order to Show Cause is to consult with an experienced family law attorney who can advise on how to proceed. An experienced attorney can also advise on how to handle a finding of contempt and work to avoid potential sanctions.
Avoiding Contempt in Arizona Family Court Orders
To avoid being held in contempt of the court’s orders, it is important that you are very clear on what those orders are you have to comply with. When any person is unclear of their responsibilities or what is expected of them under a court order, then this is an open door to either having the other party make future motions on the same issue or being set up for failure and held in contempt. It is critical that parties stay in communication with one another about making sure they understand clearly what the court has ordered.
In most cases, when people get divorced, there is some sort of legal separation and as such, it is not uncommon that parties tend to go in more of a communication vacuum and fail to adequately communicate . On some level, this is understandable but it is wise to communicate with your ex-spouse especially when it comes to compliance with court orders.
Your best resource for understanding what is expected of you under an order from the court is to hire a lawyer who understands the law as it applies to the court’s orders so that you do not spend time in court fighting over issues that other parties have been through.
Because compliance with that court order is so important, if you cannot comply, then you need to bring the other person back into the communication loop and do it very quickly. Also remember that just because you broke the order does not mean that you will be held in contempt. The courts in Arizona always look at mitigating circumstances before deciding whether something rises to the level of contempt.