How to File Contempt of Court in California Divorce and Family Law Cases

Contempt of Court in divorce

Contempt of Court in Divorce
Prosecution and Defense Law and Procedure

Filing a California contempt of court order to show cause in a divorce or family law case is a powerful but not frequently used enforcement remedy. It is  available to both husbands and wives when one of them refuses to comply with an enforceable California family law court order.

Here, we will discuss family law and procedure regarding California contempt cases including actions for violations of child support, child custody, spousal support, property division, equalization payment and other court orders. We will also address what types of orders are not enforceable by contempt in California and what some of the defenses are to contempt of court actions in divorce and family law proceedings.

California Contempt of court in divorce cases is generally a criminal proceeding.

There are two types of contempt proceedings in California. For our purposes, we will focus on the criminal aspect of it, which commences with the filing of an OSC (order to show cause) and Affidavit for Contempt. This form is mandatory and contempt petitions in divorce or family law cannot proceed forward without this form and the requisite attachments.

Since contempt of court petitions are criminal in nature, they carry with them both the criminal burden of proof as well as, under certain circumstances, the right to trial by jury.

What must the petitioning spouse or parent prove to hold the other in contempt of court in divorce or family law?

The proof necessary to hold an accused in contempt are as follows:

1. There must be a valid court order. Vague court orders that are not clear and specific are difficult to enforce in contempt proceedings.

2. The accused must have knowledge of the court order. In most situations, the accused has personally received a copy of the order or was present in court when the court order was made. In those unique situations where the accused was not served with the court order and was not present in court, whether or not his or her attorney’s knowledge of the court order can be used to infer knowledge to the accused can get complex.

3. The accused must have willfully violated the court order. For example, with California family law support orders or orders to pay attorneys fees, the accused may raise as a defense that he or she does not have the present ability to comply with the court order. Depending on the specific factual situation, the ability to pay may be a defense or an element that must be shown to prove contempt. Like other areas of contempt law in California, this area can also become complex and depends on the specific factual situation as well as whether or not child support or spousal support is the subject of the contempt action.

One consideration any time ability to pay is a factor is whether or not a partial payment is being made as opposed to a complete nonpayment. In situations where there is a complete nonpayment, consider whether the accused is paying other debts such as a mortgage or rent, putting food on the table, making car payments, paying for entertainment, etc. This is important because if the accused has the ability to pay these debts, why doesn’t he or she have the ability to pay support or attorneys fees? It becomes less about an ability to pay and more about a choice of priorities.

What due process rights does a person being charged with contempt have?

The same protections that exist in criminal law courts exist in family court. Let’s go through some of these rights and protections:

1. The accused has the right to be formally notified of the charges against him or her. This includes a formal reading of the charges although that is typically taken care of when the accused is personally served with the OSC regarding contempt petition.

2. The accused has a right to counsel. If the accused is indigent, which would be highly unusual in a family law case, the court must appoint a lawyer at the county’s expense for the accused. This can become an interesting issue because indigent status is rare in California family law proceedings. After all, if a spouse or parent is truly indigent, then it is more likely he or she does not have the ability to comply with a court order if the subject of the contempt is financial in nature.

3. The accused has a right to a hearing on the matter and has the absolute right to testify if he or she wishes, although the accused also has the right not to testify and avoid self-incrimination, and to call and cross-examine any witnesses including those against him or her.

4. Since we are addressing criminal contempt in divorce, the accused has the right to be discharged of contempt if the spouse or parent who has filed a contempt cannot meet his or her burden of proof by admissible evidence beyond a reasonable doubt.

5. What about the right to a jury trial? This issue can get confusing. Since we are focused on California contempt actions, we will disregard the federal rule for now. Under California law, any criminal prosecution akin to a felony or a misdemeanor carries with it the right to a jury trial. You would think this would include just about any contempt proceeding in California but the rules are not that clear. For example, in a situation where the maximum sentence is five days in jail and/or a $1000 fine, there is no right to a jury trial.

The rules and procedures regarding sentencing, which we will generally discuss later on this page, especially if the accused is facing jail, are not to be taken lightly and the advice of an attorney experienced in contempt actions is necessary.

How much time does a spouse or parent have to proceed with a contempt of court for violation of a California family law court order?

If the contempt of court proceeding is for a willful violation to pay support, the contempt proceeding must be commenced no later than three years from the date that the payment was due. However, since support payments are typically a monthly obligation, each nonpayment of support for a particular month is a separate count of contempt and therefore separately enforceable.

Any other contempt proceeding that does not arise out of a support obligation must be commenced within two years from the time that the contempt is alleged to have occurred.

What types of orders can be punished by contempt of court in divorce or family law actions?

Contempt of court of California child support orders

Child support orders are properly the subject of contempt if not paid. This includes both temporary and final child support orders. Contempt proceedings are appropriate even if part of the child support is paid or if the child support is paid late. Of course, the cost versus benefit analysis of bringing a contempt for late or partial payments is something that should be discussed with your family law attorney.

Contempt of court of California spousal support orders

Like child support orders, contempt of court for spousal support orders can be brought for nonpayment, partial payment or late payment.

Family support orders, whereby child and spousal support are combined in one order and are not necessarily delineated, are also subject to contempt of court for nonpayment, partial or late payments.

Contempt of court for failure to pay attorneys fees

Attorneys fees in family law cases fall into two categories. The first are Family Code 2030 and 2032 fees which are based on, in summary, one parent’s need and the other parent’s ability to pay. These need-based fee orders are enforceable by contempt because they are in the nature of support.

But what about a Family Code 271 fee award? The law is not completely clear on this issue and this issue has not been tested enough in our California appellate courts for there to be a clear-cut answer as of the date that this page is being written in 2013.

Contempt of court for failure to follow an order to seek work

It is not used very often but spouses and even their lawyers really don’t understand that when a court makes an order to one spouse to seek employment or receive job training, that is not a suggestion. It is a directive. Like all court orders, willful failure to follow it can subject the spouse to contempt of court proceedings. While there are limited exceptions to contempt in such circumstances, if one spouse or parent has failed to follow a court order to seek employment or training for that spouse’s or parent’s mutual obligation to support the children, that spouse may face serious contempt proceedings.

However, such orders cannot be enforced by contempt in spousal support proceedings.

California Contempt of court proceedings against a spouse or parent’s employer

Wage garnishments are very common in family law actions and are often used to ensure timely payment of support. If a spouse or parent’s employer willfully fails to comply with a wage garnishment (also called an earnings assignment order) that relates to the payment of support, that employer is subject to contempt proceedings.

Employers who are related to the employee are more likely to violate court orders because they may believe they can get away with it. In such situations, the spouse or parent receiving support should seriously consider sending a firm letter to the employer regarding the violation because, once an employer is informed that he or she is violating a court order and may face contempt proceedings, they are more likely to correct their action.

The interesting part is what happens to the support obligor in such a situation? If the employer violated the wage garnishment and the employee had no control over that situation, then the employee may not have a contempt liability because he or she did not willfully violate the court order.

Contempt of court for violation of domestic violence or other restraining orders

This should be obvious but a willful violation of a restraining order, for example a “no contact order” that resulted from a domestic violence application, is punishable by contempt.

Contempt of court to enforce nonpayment of the debt

A California divorce and family law order or judgment cannot be enforced by contempt if it relates to the payment of a debt but what is and is not a debt is not what a layperson may consider the term to mean.

For example, child support as well as spousal or family support orders are not considered debts but rather a support obligation even though the payment of money is involved by one spouse to the other.

However, if the court order requires a husband or wife to make a specific payment to satisfy a community liability or obligation, such as a house or car payment, such an order may not be enforceable by contempt unless the spouse who is pursuing the contempt of court can show that it is an integral part of a support order. This is a factually rich area and what was “intended” can be the subject of great dispute. California courts and case law have gone both ways on this issue depending on the individual facts of the case.

Contempt of court of California child custody and visitation orders

Custody and visitation orders are possibly the most violated and least enforced orders in contempt proceedings. It is far too common for a parent to violate the other parent’s joint legal custody rights and willfully fail to adhere to the parenting schedule set forth by the court order.

In situations where one parent violates legal or physical custody rights or otherwise fails to follow the parenting plan that was ordered by the court, the victimized parent may proceed with a contempt action. It is recommended that before proceeding, the other parent’s willful violation be documented through text message, email or other form. Giving a parent the chance to correct his or her misconduct before proceeding with contempt sometimes make the likelihood of that parent being held in contempt more likely. That is because feigning a lack of knowledge or other ignorance of the court order may be a hard sell to the judge if that parent has been put on secondary notice of the order and told that they are violating it.

What about situations where the child simply refuses to go with the other parent?

This is a common scenario in California child custody cases especially when teenagers are involved. There are a variety of reasons for it including but not limited to parental alienation or undue influence of the child.

The general rule is that a custodial parent who has control over the child and the ability to make the child available for visitation may be held in contempt of a visitation order. However, what exactly is control and ability? Anybody who has had teenagers knows that making a teenager do anything is not an easy task. Much depends on the age of the child in such factually specific circumstances. A five or a six year old child, for example, is vastly different than a 14-year-old.

Contempt of court for failure to pay an equalization payment

Equalization payments are common in California divorce judgments and result from property divisions. For example, if one spouse received the greater of the committee property assets, that spouse would likely be ordered to make a cash or other equalization payment to the other spouse to equalize the division of the community. Such orders are enforceable by contempt if the obligor spouse fails to make the payment or makes it late.

Contempt of court in splitting community property assets

If a court order or judgment requires one spouse to give the other spouse property, which is typically a piece of personal property, or the order requires one spouse to make an affirmative act to effectuate a transfer of property, a willful violation of such an order can be punished by a contempt of court proceedings.

Contempt of court for failure to comply with mandatory declaration of disclosure orders

The California Family Code specifically lays out procedure for the service of both a preliminary and a final declaration of disclosure during a divorce proceeding. Pursuant to Family Code 2107, the spouse who has been ordered to comply with his or her disclosure requirements and willfully fails to do so can be held in contempt. Contempt is one of the few remedies that are available in such a situation which also include monetary sanctions against a spouse as well as evidentiary or issue sanctions.

Punishment after the court makes a finding of contempt of court

Contempt of Court in Divorce Sentencing

Contempt of Court in Divorce
Understanding Sentencing Laws

California Code of Civil Procedure 1218(c) state that for each act of contempt, the convicted spouse or parent shall be fined up to $1000 and or imprisoned for up to five days. Notice that this is for each act of contempt. In support proceedings, each monthly payment is a separate act. The court also has the power to order community service.

The punishment in family law proceedings is mandatory.

On a first offense, the spouse or parent convicted of contempt must be ordered to perform community service for up to 120 hours or be imprisoned for 120 hours, which amounts to five days, for each count of contempt. Therefore, for example, if there was a failure to pay child support for 10 months, that is 10 separate counts or 50 days in jail.

If there is a second contempt finding, the rules become more severe, the punishment now becomes 120 hours of community service and imprisonment for up to 120 hours, for each act of contempt.

For a third and any further contempt findings, the convicted spouse or parent must be imprisoned for up to 240 hours (which amounts to 10 days) and ordered to perform up to 240 hours of community service, for each count of contempt.

There are also fees and costs associated with the contempt proceeding.

The court must take into account a spouse or parent’s employment schedule when ordering community service or jail. After all, how is a person found to have violated a court order, especially a support order, supposed to make support payments if your she loses his or her job?

The court is not mandated to award attorneys fees in California contempt of court proceedings. It is a discretionary function of the court.

Are you considering bringing a contempt of court petition or do you need to defend one?

Contact our experienced and knowledge family law attorneys for help. We are a phone call or email away.