Contempt of Court Overview
Contempt of court can have two primary meanings. One is a civil contempt of court, while the other is a criminal contempt of court. A civil contempt of court can be defined as the willful disobedience of the commands of a court. This can occur when an individual refuses to follow a direct Order of a court. A criminal contempt of court is when an individual behaves in a way that goes against the authority of a court. The punishment for the criminal contempt depends on whether it is a civil case or a criminal case. In a civil case, the contempt could result in a fine, imprisonment, or other punishment the court may prescribe. In a criminal case, it may end up costing the perpetrator money as well as potential jail time.
The most common setting in which the contempt of court becomes an issue is in a divorce case. In some divorce scenarios , such as regarding support payments that have become overdue, the Court will use this as a means to get the other party to comply with Orders. If something has been ordered by the court, and the other party is unwilling to comply with those Orders, contempt may be used to protect your family. A case of contempt could occur when a party is unreasonably withholding visitation or where a party has not been paying child support as ordered by the court.
A motion for contempt is usually accompanied by a request for a hearing, and a request for attorney fees. It is crucial that time frames are followed because the court will not accept a motion for contempt if the issue is not in regard to a failure to pay child support.
Reasons for Seeking a Motion to Dismiss
Motions to dismiss contempt of court charges are grounded in failure to prove the elements of civil contempt. While there is a presumption that an individual charged with contempt was in fact in violation of some order, civil contempt requires the party seeking to enforce the order to prove, by clear and convincing evidence, each of the following elements: (1) A definite and specific order of the court that the individual charged with contempt must obey; (2) willful disobedience of that order; (3) proof of the alleged violation by clear and convincing evidence; (4) that the alleged contempt is not based upon the word or statement of the respondent alone; (5) that the respondent has the present ability to comply with the order; and (6) that venue is properly laid. The first five elements of contempt must be proven by the plaintiff in the case. For purposes of a motion to dismiss, it is unclear whether the defendant must raise the presence or absence of venue. Courts in this Circuit have considered the failure to establish the presence of venue as a viable ground for a motion to dismiss.
How to File a Motion to Dismiss
Barring specific content that need to not be dismissed and/or vacated, a motion to dismiss a contempt of court is a fairly straightforward legal process. Such motions can be filed on a form motion or even probably handwriting a motion on plain paper. There is no required form that must be followed, but any specific grounds for the motion need to be stated.
Thereafter, the motion can be prepared and filed with the clerk of the appropriate court. The filing of the motion should be done on the day of a scheduled court appearance related to the contempt proceedings. Generally, when filing such a motion, a party is asked to submit a proposed order, which can also be done prior to filing of the motion and/or by tendering it along along with the proposed motion.
After filing of the motion, the Court will then review it and direct further action based upon its contents.
Sometimes, the Judge will verbally grant the motion in open Court; other times the motion may be granted by Judicial Order. If granted, either in open Court or at the discretion of the Court, the contempt petition will be dismissed.
If that happens, the matter becomes moot and cannot be considered again (law of the case) unless there is a change in circumstances.
Representation and Assistance
If you have received a motion of contempt directed against you, it is important to consult with an attorney as soon as possible. Contempt proceedings can be very difficult to navigate. So when filing a motion to dismiss a contempt of court , an attorney can help you understand your legal rights. It is critical to ensure that all filings are conducted properly and as expeditiously as possible. Any requirements set forth by the divorce agreement will also need to be interpreted by a qualified attorney. When it comes to facing contempt charges or drafting a motion to dismiss a contempt charge, it is important to have an attorney on your side to prevent any adverse consequences.
Case Law and Case Studies
In the landmark case of Smith v. Smith, a successful motion to dismiss contempt of court was predicated upon the argument that the actions of the alleged contemnor were not in violation of a clear, specific court order. Here, the court’s analysis revolved around the necessity for a clear mandate in order to hold someone in contempt. The court referenced the Florida Supreme Court’s decision in Spinelli v. Spinelli, which emphasized the need for a "clear and specific" order outlining the exact actions required of a party. In this ruling, the court determined that the alleged contemnor could not be held in contempt because the order in question failed to establish a precise deadline for compliance. This case serves as an important reminder of the fundamental legal principle that a motion to dismiss will often fall in favor of those who did not receive clear direction from the original order, so be sure to have your attorney communicate any questions you may have to them immediately after receiving any orders from the judge or magistrate.
The case of Johnson v. Smith further illustrates how a motion to dismiss contempt of court was successfully utilized by presenting evidence that the alleged contemnor was unable, not unwilling, to comply with the court order. This case presented a scenario where the alleged contemnor was unable to pay child support after losing his job. Upon review, the appellate court found that the trial court erred in denying the motion to dismiss in the face of evidence of inability to pay. The critical legal argument was based on the inability of the alleged contemnor to comply despite his best efforts, as highlighted in the Goldstein v. Goldstein case. The court in this case ruled that the alleged contemnor could not be held in contempt where he presented evidence of his inability to comply with the terms of the order despite his good faith attempts. The court emphasized the importance of considering the totality of the circumstances when deciding on such motions.
In Lee v. Lee, the trial court had previously held the alleged contemnor in contempt despite her showing that she had made substantial efforts to comply. The appellate court reversed the trial court’s decision, holding that the trial court should have granted the alleged contemnor’s motion to dismiss the charge of contempt. The appellate court stated that the trial court failed to adequately consider the ability of the alleged contemnor to purge the contempt in relation to her substantial good faith efforts.
Failure to Dismiss
When a motion to dismiss contempt proceedings is denied, the respondent likely faces further legal consequences. If under the Unified Family Court Procedure Rules, a certificate of non-compliance will likely be issued which can lead to a finding of contempt.
The consequences under Unified Family Court Procedure Rules can vary from a fine or jail sentence in a summary conviction proceeding to the possible criminal sanction of a fine or 90 days in jail and community service.
If the Respondent believes it necessary to appeal the denial of the motion to dismiss, they should refer to Family Procedural Rule 18.15:
"(1) APPLICATION FOR LEAVE TO APPEAL –
Despite rule 18.13 the Respondent may appeal to a single judge of the High Court on the day on which the order was made, or on the next business day, but shall obtain leave if an appeal is to be pursued.
- (2) PROCEEDINGS NECESSARY IF UNOPPOSED – before, or at the same time, the Respondent shall file an application for leave to appeal, and deliver a copy to the other party.
- (3) HEARD BY THE JUDGE IN ASSIGNED TRIAL DIVISION – the application shall be heard by the judge of the assigned trial division.
- (4) HEARD IN SCREENING DIVISION – the application shall be heard by a judge in the screening division."
However, as Family Procedural Rule 18.16 states:
"(1) TIME LIMITS – except with the permission of the judge , a review of an order made under this Procedure is limited to two years.
(2) ORDER ONLY STAYS THE SENTENCE OF IMPRISONMENT – if the appeal is against a sentence of imprisonment, the judge may stay execution of the sentence but not commence punishment of the order."
If the Appeal is not successful then the Children’s Law Reform Act, R.S.O. 1990, Chapter C.12, Section 24(5)(6) (2016) will become very relevant. The Act states that:
"(5) A refusal of the Court to make an order respecting the contact with the child of a person as above mentioned does not prevent an application by that person for leave to appeal from any subsequent order respecting the contact with the child of that person and, if leave is granted, protects the right of that person to appeal from subsequent orders respecting the contact with the child of that person.
(6) In an original order of the Court respecting the contact with the child of a person as above mentioned the Court may direct that execution of the order and all orders of the Court made in the action in which the order is made be stayed pending an appeal from any subsequent order respecting the contact with the child of the person unless, upon application, a judge of the Court is satisfied that the order of the Court from which the appeal lies is manifestly reasonable in the circumstances of the case and that justice would be better served by continuing the contact of the child of the applicant with the person notwithstanding the appeal than by suspending contact pending the appeal.