Contempt is the willful failure to obey a court order when one has the ability to do so. There are two types of contempt that can occur in any case: civil contempt and criminal contempt. Many attorneys (and some judges) fail to differentiate between the two, which can lead to problems. This is exactly what happened in the recent case of Cansler v. Cansler, which reminded me that this is as good a time as any to review the law on contempt.
Civil contempt occurs when the court wants to compel or coerce someone into complying with an order. Punishment is typically conditional and can be avoided by compliance. For example, one who refuses to pay court-ordered child support may be imprisoned until the payment is made or, more commonly, given a finite period of time in which to make the payment before imprisonment is imposed. Thus, the civil contemptor is often said to possess the “keys to the jailhouse door” because compliance will set him free. Fines can also be issued to coerce the contemptor or compensate the injured party. The burden of proof is a preponderance of the evidence. Significantly, the court can direct the civil contemptor to pay the injured party’s attorney’s fees and litigation expenses.
Criminal contempt occurs when the court wants to punish someone for violating an order. The punishment is limited to imprisonment of up to 10 days and a fine of $50 per violation. Thus, if a party is prohibited from contacting the other party yet telephone records reveal over 200 calls were placed, that is over 200 violations and would expose the criminal contemptor to over 5-1/2 years’ imprisonment and a fine of up to $100,000! (This actually happened in one of my cases.) The punishment is unconditional and must be served regardless of future compliance with the order. The court can suspend the sentence, however. Because it is form of punishment that involves the loss of liberty, certain protections afforded to criminal defendants apply, such as the more difficult standard of proof beyond a reasonable doubt, double jeopardy, special notice provisions, etc. There is no statutory basis to make the criminal contemptor pay the injured party’s attorney’s fees.
For most issues that arise in family law matters, I prefer civil contempt. First, the ability to make the other party reimburse my client for her attorney’s fees is a big plus. Second, the burden of proof is easier to satisfy. Third, punishing the other party with prolonged incarceration rarely accomplishes anything worthwhile. Sometimes the strong message that comes with incarceration needs to be sent but, in my experience, the act of paying the ex’s attorney’s fees (and the promise of more fees the next time the contemptor violates the court’s order) works wonders in most situations.