Enforcing Court Orders Through Contempt Proceedings

 Posted on August 17, 2020 in Family Law

When a party has violated a court order, there are several remedies the aggrieved party can request from the Court, one of which is that the violating party be held in contempt of court. There are four types of contempt: Direct Criminal Contempt, Indirect Criminal Contempt, Direct Civil Contempt, and Indirect Civil Contempt. So what do each of these types of contempt mean and which is appropriate for your situation? 

Generally speaking, the primary difference between civil and criminal contempt is the purpose for which the contempt sanctions are imposed. Civil contempt proceedings are designed with the intention of compelling the violating party to comply with the court order (“the contemnor”) or, more specifically, to perform a particular act required in the order. Criminal contempt proceedings are instituted with the purpose of punishing a person for their past misconduct. Criminal contempt is a much more extensive proceeding which requires a greater burden of proof, which is why generally in domestic relations proceedings contempt petitions are brought as civil actions.

Civil contempt proceedings have two key components. First, the contemnor must have the ability to take the action sought by the aggrieved party. Second, no further contempt sanctions will be imposed once the contemnor complies with the pertinent court order (outsides of attorneys fees which are awarded when there is a contempt finding). This means that the contemnor must have the opportunity to purge himself of contempt by complying with the pertinent court order without further penalty being imposed. In civil contempt proceedings, the petitioning party needs only to prove by a preponderance of the evidence that a contemnor has violated a valid and clear court order.  The burden then shifts to the violating party to prove that the violation of the order was not willful of contumacious.  For example, in a domestic relations case where a parent has failed to comply with a child support order, the parent owed support may bring a Petition for Indirect Civil Contempt against the non-complying parent. Usually, in these proceedings, the contemnor has the ability to purge themself of contempt by paying the outstanding child support owed without further penalty.  However, a party can be found to have violated a court order, yet not be in contempt of court because their conduct had a justifiable reason. 

A party may seek criminal contempt for the purpose of seeking retribution or deterrence of a particular conduct.  This is typically when the conduct is egregious or repeated and the violating party is intentionally disobeying a court order.  In criminal contempt proceedings, the contemnor is not afforded the ability to purge himself of his misconduct. Rather, the contemnor must serve their jail sentence (if one is imposed), pay the required fine or be subject to the other sanctions the court may enter.  Because the contemnor in criminal contempt proceedings does not have the ability to purge him or herself, the burden of proof in criminal proceedings is much higher than in civil proceedings. In criminal contempt proceedings, the contemnor must be proven guilty beyond a reasonable doubt.

Further, a person subject to criminal contempt proceedings is entitled to the same procedural rights of a criminal defendant, whereas a person facing civil contempt is not. This means that a defendant in a criminal contempt proceeding has a right, among others, to personal service, a right to privilege against self-incrimination, and a right to counsel.

The violation of a court order can serve as the basis for either a criminal or civil contempt petition in court. Note, however, that criminal contempt proceedings are not used for a violation of criminal law, rather criminal contempt proceedings allow different types of punishment and relief to be awarded for the contemnor’s violation of a court order. Civil contempt can be sought for violation of a court order during the ongoing domestic relations case. However, since a criminal contempt proceeding affords the defendant different procedural rights, a person seeking criminal contempt would need to initiate separate criminal contempt proceedings by filing a separate complaint and serving the defendant. These proceedings would not be part of the existing domestic relations case. In practice, this means that the same conduct may give rise to both criminal and civil penalties.

For example, in a dissolution of marriage case, if a former spouse fails to execute the proper documentation (as required by the Marital Settlement Agreement), it is possible for the aggrieved spouse to seek criminal contempt requesting that the other spouse be jailed for a specific period of time (up to six months) punishing his or her failure to execute the proper documents. At the same time, the aggrieved spouse could seek civil contempt to coerce the spouse to execute the documents at some point in the future.  A court is going to be more compelled to grant a request for civil contempt than criminal, so when both remedies are permissible it’s preferable to proceed with civil contempt.

The other distinction that is important to establish in contempt proceedings is whether the conduct gives rise to direct or indirect contempt. Direct contempt involves conduct which occurs in the presence of a judge. For example, a party my be held in direct criminal contempt for outbursts or disruptions in the courtroom. A party may be held in direct civil contempt for failing sign a particular document that the judge has ordered them to sign in open court. By contrast, indirect contempt involves conduct that occurs outside of court. In these cases, the judge does not have personal knowledge of the conduct. One of the most common examples of indirect contempt is the failure of a party to comply with child support or maintenance orders.

Strategically, it is important to be aware of which type of contempt is appropriate and most advantageous for your case when seeking to enforce a court order. On the other hand, it is important to be aware of your rights, in the event that a contempt Petition has been filed against you. If you are seeking to enforce a Court Order, or if a Petition for contempt has been filed against you, please contact our office for further assistance.

SOURCES:

In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N. E. 2d 404 (4th Dist. 1990).