To hold a person in contempt, the order must be in writing and must also be definitive; otherwise it lacks the certainty required to punish through a proceeding regarded as criminal or quasi criminal. What is “contempt of court?” When a party is ordered to do something and fails to do it, the other party can file a Contempt of Court Order to Show Cause.
The Judge then determines if the party is in contempt of a court order. If a party is found in contempt, the Judge will sentence as appropriate. The punishment can include, fine, community service and imprisonment. The “accused” is afforded constitutional guarantees, including the right to remain silent and a right to a jury trial.
However, the federal right to a jury trial applies if the court punishes multiple charges of civil contempt with a jail term longer than six months. Thus, if the court is empowered with the option of imposing a sentence longer than six months, it must permit the defendant to have a trial by jury.
California contempt of court in divorce cases is generally criminal proceedings and courts. Since contempt of court petition are criminal in nature, they carry with them both the criminal burden of proof (beyond a reasonable doubt) and the right to a jury trial if a possible jail sentence could be over 6 months.
For example, I am defending a client who has been accused of violating 81 counts of separate visitation incidents pursuant to a court order. Because each count is punishable in California of up to 5 days, he could be sentenced to over 6 months and he has a right to a jury trial.
Disobedience of a court order may be punished only if the order meets several prerequisites beyond a reasonable doubt. The order must be valid and within the court’s power to enter. The terms of the court order must be specific and narrowly drawn. The court must be in writing and either filed with the clerk or entered in the court’s minutes. The accused must have had knowledge of the order and had the ability to comply with the order along with doing it willfully.
Orders enforceable by contempt in divorce proceedings: (1) Support orders: child, spousal and family support orders based on obligation arising out of marriage and parentage. They are not money judgments in civil actions for the payment of a “debt” within the meaning of the constitutional guaranty against imprisonment for debt. Child support, spousal and family support orders are deemed to be law-imposed obligation and are thus enforceable by the court’s contempt powers.
(2) Child Custody and Visitation Orders: these orders do not impose a “debt” obligation. The court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an injunction restraining relocation with the children. (3) Attorney’s fees: fees and costs are awardable by statue in marital proceedings. The award is based on a law-imposed obligation (not arising out of a money judgment for a “debt” and thus is enforceable by contempt.)
(4) Property Division: a spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt. (5) Restraining orders or Protective Orders: the court may invoke its contempt power to compel compliance with valid protective and restraining orders issued in a domestic relations proceedings. Additionally, in California, the crime would be a misdemeanor, Penal Code section 273.6.
There is a remedy for those who have not received their child, spousal support or other orders not complied with in your divorce. Filing a contempt action in a divorce action is complicated and will require an experience attorney. Additionally, if you have been served with a contempt affidavit, this must be taken seriously since the penalties could be incarceration.
Any questions or concerns, feel free to email me at [email protected] or call my office at 310-601-7144.