Contempt: Enforcing Court Orders Against A Violating Party
Enforcement Of Court Orders/Defending Contempt
Contempt Motions. How To Enforce Court Orders When Your Ex Is Violating Them?
Can You Give Us A Roadmap Of Our Discussion For How Someone Can Enforce Court Orders When Their Ex Is Violating Them?
First, let’s talk about what kind of orders can be enforced and what are the most typical kinds of violations to court orders that can trigger a contempt or enforcement motion. Next, we’ll talk about the kinds of things the court can do to enforce its orders, what sanctions the court can issue in order to enforce its orders. Then we’ll discuss the burden of proof, what someone has to prove in order to enforce court orders against a party who is violating the court orders. Finally, we’ll talk about the nuts and bolts process for getting that done, how to prove it and the nuts and bolts of what needs to be filed with the court, how the hearing will be scheduled and what to expect at that hearing.
What Kinds Of Court Orders Are Enforceable And What Are The Most Typical Violations That You See Being Enforced?
Most typically it will be enforcement of parent time or visitation, child support, alimony that’s not getting paid. Restraining orders in the divorce decree or the paternity decree like don’t disparage against the other party, violations of the parenting plan, failing to communicate civilly with the other side, text messages that are insulting or obscene, those kinds of things. But pretty much any court orders that are currently in place can be enforced.
What To Do If Your Ex Has Filed A Contempt Or Enforcement Motion Against You. How To Defend Against Enforcement Proceedings?
If The Other Side Is Violating A Court Order, What Kind Of Things Can The Court Do About It?
Courts can enforce their orders by first finding somebody in contempt of court or violating a court order, and after that contempt finding has been made, they can sanction the party by doing such things as taking away driver’s license, ordering community service, ordering parenting classes, ordering fines, makeup parent time. They can even order jail time depending on whether it’s a judge or a commissioner. A commissioner can order up to five days in jail for every violation and a judge can order up to 30 days in jail for every violation. When filing a motion to enforce against someone, it’s important to know the purpose of contempt. Many people have the misconception that it’s about punishment and it’s not. There’s actual case law that says contempt motions are not about punishing the other person. What it is about is bringing the other side into compliance.
So very often the court will start small and then get bigger. Sir or ma’am, you’re held in contempt and I’m going to issue these sanctions for you today, whether it be jail time or community service or whatever, but you know what? I’m going to stay those sanctions to give you an opportunity to purge your contempt to come into compliance and you’ll have to pay the other side’s attorney’s fees and you may have to take this class or whatever, but if you are strictly compliant with the court’s orders for a period of X number of months, and if you have done all of these things, then I’m going to declare your contempt purged and vacate the order that says you have to spend this time in jail, et cetera. I’m going to give you the sanctions, but then I’m going to give you some time to get into compliance and hopefully I don’t have to impose those sanctions. Sometimes the court will also set a review hearing and say, look, I want to see if you’re going to come into compliance and then I will decide whether or not I’m going to sanction you.
If you are not in compliance on that day, then I’m going to lower the bull and the hammer’s coming down and then I’m going to sanction you. And the more often the court sees somebody failed to comply, the stiffer and stiffer those sanctions will become. Generally speaking, you should not expect stiff sanctions at the first hearing. A smart attorney will go to court and say, your honor, we’re not about punishment today. We don’t want to be vindictive. All we want is to comply or her to comply, so let’s do this judge, find them in contempt order that they pay my attorney’s fees, maybe do one or two of these other things, order a bunch of sanctions, but then stay those sanctions and then let’s see if he complies and let’s set a review hearing in six months or so and see how compliant he or she has been. That is going to be an attitude that the court is going to find more reasonable rather than showing up for the court and say, your honor, I want my pound of flesh, send them to jail forever. That’s not going to fly very well, particularly the first time. That’s not the entire list of sanctions and sometimes a court can get creative in what sanctions they fashion, but those are the most typical. In addition, they can order that the violating party pays the attorney’s fees of the moving party for the necessity of filing the motion.
Are There Limitations Things That The Court Can’t Do?
Yes, they can’t go beyond the limits of the jail time that I’ve indicated. Also, they can’t change permanent orders. For example, if you have something in your paternity decree or your divorce decree that you would like changed, you’re going to have to file a petition to modify and go through that process and you can look at my other articles and videos on my website for that, but that’s a different process. You can’t ask the court to change the court orders as a sanction for somebody violating them. One other thing that should be noted is that the court is going to take a party’s motion for contempt more seriously if they have clean hands, if they’re compliant with the court orders, the court’s going to have a harder time enforcing your motion for contempt and enforcement of court orders if you yourself are non-compliant with court orders. One of the things that you want to do is make sure that you’re squeaky clean to the extent possible yourself before filing such a motion.
What Exactly Does Someone Have To Prove Then In Order For The Court To Find Contempt Or Enforce Its Orders?
Three things. One, that the party knew what was required. Two, that they had the ability to comply and three, that they knowingly failed to comply. Those are the three elements of contempt. Now, if your decree was based on a stipulation, an agreement, then it’s presumed that whatever you agreed to, you have the ability to comply with. If the court entered the order after a trial, then it’s presumed that the court believed that you have the ability to comply with the orders that it made. Court’s going to begin with the presumption that they have the ability to comply. It’s important to note Tracy too, that the burden of proof is clear and convincing evidence. That’s something like 75% of the evidence. There are three standard burdens of Perth, beyond a reasonable doubt, like in a criminal case would be something like 95% of the evidence. Preponderance of the evidence is just more likely than not. It’s like 51% of the evidence. Clear and convincing evidence is something like 75% of the evidence.
Now, there’s a statute in Utah that says that if what you’re trying to enforce is parent time because somebody hasn’t given you your parent time under some circumstances, you only have to prove that by 51% of the evidence, by a preponderance of the evidence, but most of the time it’s going to be 75% or clear and convincing evidence. That is a higher burden, but it can be done and it’s regularly done. If somebody is required to make payment of some kind like child support or alimony that is ongoing and regular, then once the moving party has alleged, hey, they didn’t pay it, the burden is on the defending party to show that they did. That makes it easier for somebody filing a motion to enforce. It’s hard to prove them negative and the court recognizes that. So generally, they’re going to say, Hey, look, they say that you haven’t paid this. Show me that you have, and if you don’t show me that you’ve paid it or if you’re really vague about it, I’m going to believe the guy who says you didn’t.
How Does Someone Go About Proving That? What Do They Need To Do Or What’s The Process Look Like?
They need to file a motion to enforce. It used to be called an order to show cause, and the legislature changed the wording in Utah, but it’s now called a motion to enforce. In the motion you state, look, judge, here’s the elements I need to prove. There’s a court order. They knew about it, they had the ability to comply, they didn’t. Here is the order that I’m trying to enforce and I’m going to quote it, I’m going to cite it, and here’s all the ways he violated it or that she violated it. If it’s something that they should have done that they didn’t do, here’s what they were supposed to do. A reasonable time has passed and they still haven’t done it. If there are text messages, emails, photographs, recordings, anything like that, that backs up what you’re saying, police reports, DCFS records, whatever the evidence is, you’ll attach those as exhibits cite to them and make reference to them.
Anything that can be backed up with external evidence should be. If all you’re doing is saying, Hey, this is what happened, because if the other side then denies it, then you’re in a did to did not situation and that’s not going to get you to clear and convincing evidence. The other side admits it, well then of course it will. After you filed the motion, you get a hearing date with the court, you call the court clerk and you’ll file along with the motion, an order to attend hearing. This is an order that the court signs saying the hearing is going to occur at such and such a date and such and such a time at this location, and you, the other side are ordered to appear and show up and tell me why I shouldn’t hold you in contempt. Once that has issued, you’ve got to make sure that the other side gets served with it, with the order and with the motion and any exhibits that you’re relying on that go along with the motion. There are various ways that can be served and depending on the circumstances of your case, you might be able to just email it, you might be able to just mail it, but in other circumstances you’ll have to have a process server formally serve it on that.
What Will The Hearing Look Like Or What Can Someone Expect When They Actually Get To Court?
That depends on whether the hearing is before a court commissioner or before the judge. The court commissioner is not a judge. They have a lot of the same powers and authority of a judge. They wear a black robe and you call them your Honor, but they don’t have the same full authority that a judge has. And judges often delegate enforcement motions to a commissioner, but there are not always commissioners. In the more populated areas of the state, Salt Lake, Ogden, Provo, lots of other places in the state, there are court commissioners. In the more rural parts that they don’t have commissioners and so you’re in front of a judge. If you’re in front of a commissioner, it will be a proffer hearing, meaning that evidence will not be taken. In other words, nobody’s going to be put on the stand and put under oath to tell the whole truth and examined and cross-examined.
Instead, the hearing will be a proffer hearing, which means the person filing the motion or their attorney will stand up and say, your Honor, here is Mrs. Jones, she’s my client. If called to testify, here’s what she would say. And she would testify consistently with her motion in her affidavit, which we filed with the court, here, let me explain the high points of that. The other side attorney would get up and say the same thing for their client. The entire hearing takes an hour or less. The commissioner will then say, well, based on the proffers and the evidence and the exhibits, I find that there is contempt or I find that there’s not contempt. And then they’ll go ahead and make the rest of their ruling. If either party wishes to object to the commissioner, they have 14 days to do it. And if they do that, then it’ll go up to the judge. The judge will hear it fresh without any preferential treatment given to the commissioner’s ruling. So that’s how it’ll occur if it goes before a commissioner.
If it goes before a judge, then the judge has the option of either having a proffer hearing like I’ve described, where their testimony is just proffered rather than examination and cross-examination. Or the judge can require a more trial type of hearing where folks are put on the stand and examined and cross-examined. Those hearings are more difficult to prepare for and they take longer and they’re generally more expensive. Sometimes a judge will say, let’s do this. Let’s have the direct testimony be by proffer. I’ll let each attorney or each party proffer what they would say subject to cross-examination. Either party can put the other side on the stand to say, okay, I understand this was your proffer, but let me ask you a few questions about that. That’s kind of a hybrid way of doing it.
Another finding that the court can make is that the person held in contempt has unclean hands. The significance of an unclean hands fighting is this: When people come to a court, oftentimes they’re asking for equitable relief, meaning, fairness. Your Honor, please order this sanction just because it’s fair. But if someone comes to equity, to a court of equity with unclean hands asking for fairness, then they’re not entitled for equitable relief. And so, if the other side is found to have unclean hands, then you can argue, your honor, they’re asking for a break to be given in this regard. They’re asking for this equitable relief, deny it. They’re in contempt. Why should they get fairness when they have denied me fairness?
How Can An Experienced Family Law Attorney Like You Help?
First by drafting the motion in the right way, in the right format, by ensuring that there is enough evidence that there’s a good case. You don’t want to tilt it windmills, so to speak. You don’t want to be filing frivolous motions. If you lose, then there is at least some possibility that the court could order that you pay the other side’s attorney’s fees. So, you want to make sure that your case is solid, and also anticipating the other side’s defenses and knowing what can be done to rebut those defenses.
Conclusion
I’m here with experienced family law attorney Kelly Peterson, who does assist clients in enforcing court orders, having the violating party held in contempt and sanctioned if necessary to do it. If this is an issue for you or someone you love, please contact Kelly Peterson’s office to see how he can help. He can be reached at the contact information listed on this site.
Attorney Kelly Peterson is uniquely qualified to address questions you may have about enforcing court orders and defending against contempt motions. To discuss the details of your case, call the Law Office of Kelly Peterson at (801) 616-3301 today!