The primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts. The secondary purpose is to protect and enforce the parties’ rights by compelling obedience to court orders and judgments. Examples of this would be failure to appear when subpoenaed, screaming profanities in court, and failure to obey a court order.
The judge may impose sanctions such as fines or jail for someone found guilty of contempt of court. For criminal cases, sanctions typically are a jail term and fines that are intended to punish. Probationary terms may also be imposed. As for civil contempt, sanctions may include a fine or a jail term that ends when the offending behavior ends and money damages may be awarded to the injured party.
To prove contempt the prosecutor or complainant must prove four elements: existence of a lawful order, knowledge of the order, ability to comply and the failure to comply. As referenced, my client had attorneys and an accountant to insure that effective and full compliance with court proceedings would be effectuated.
I have a case now in which the opposing party in a divorce case is facing numerous contempt charges for failing to provide financial information as ordered by the Court. The crux of the case generally falls on the factors of the “Respondent/Defendant’s” ability and willingness to comply with a court order. Another relief that could be requested is attorney fees incurred in filing an affidavit of contempt in the family court case scenario.
I have defended several clients in numerous counts of family law contempt cause of actions pertaining to financial obligations such as child support, spousal support and attorney fees (financial issues). Another area where contempt is brought forth is in violations of a visitation order or restraining orders. My most recent case is about noncompliance and overt disobedience of a court order requiring the other party to provide financial documents for “discovery.”
The four factors to be proven: valid court order, knowledge of the order, ability to comply with the order, and willfulness of conduct must all be proven beyond a reasonable doubt in both the civil and criminal arena. Since the court can impose up to five days per count of jail, a maximum of 180 days of jail would trigger the right of the Respondent/Defendant to request a jury trial.
The power to punish for contempt is broad and carries with it great responsibility to apply it judiciously and only when contempt is clearly and unequivocally shown. Defendants in criminal matters should be given every opportunity to exonerate themselves. Criminal contempt sanctions should be only utilized after the judge has determined that civil contempt remedies are inappropriate.
It is incumbent and prudent if you are the party that is attempting to get a contempt action initiated and successful that you hire an attorney that have both the experiences and expertise in both the criminal and civil arena. While in family law (civil) court is not the criminal arena, the constitutional rights afforded a criminal defendant will be required, including but not limited to, a right to an attorney, right to a speedy trial, and a right to remain silent.
It is a complex matter that will require you to get an attorney not only to decipher the pleading requirements but also to effectively win the case in trial.
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