Defending Against Enforcement/Contempt Motions
What To Do If Your Ex Has Filed A Contempt Or Enforcement Motion Against You. How To Defend Against Enforcement Proceedings?
Could You Give Us A Roadmap Of Our Discussion, What To Consider And What To Do If Someone Is Faced With The Contempt Or Enforcement Motion?
You bet, Tracy. First, let’s 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 own orders. In doing so, we’ll also discuss what the court can’t do in an enforcement action. We’ll talk about the burden of proof, what the other side has to prove in order to enforce court orders or to have someone held in contempt who is violating those orders or who it’s alleged has violated those orders. Next, we’ll talk about the most common defenses to contempt or enforcement motions and also what if someone really is violating a court order, what do they do? Finally, we’ll talk about the nuts and bolts process for proving those defenses and what needs to be filed with the court, how a hearing will get scheduled and what to expect that the hearing.
What Kinds Of Things Can The Court Do Against Someone Who’s In Contempt Or Who’s Accused Of Violating A Court Order?
The court has a variety of options. They can take away a driver’s license, order community service, order make up parent time if a violation of parent time has happened, they can order fines of up to a thousand dollars. They can order jail time of a certain amount. They can order a party to take some sort of a remedial class, those kinds of things. The court can get creative in what sanctions it orders, but those are the most typical.
Contempt Motions. How To Enforce Court Orders When Your Ex Is Violating Them?
Are There Going To Be Limitations On That? Like Things The Court Can’t Do?
There are limitations. A court commissioner who’s not a full judge but has a lot of judicial authority and wear’s a black robe and you call them your Honor, if they are the judicial authority holding the hearing, they can order up to five days in jail for the violations. A judge can order up to 30 days in jail. So that is serious, but there are limitations on how much jail time can be ordered. Once in a while a judge can order that the party is going to remain in until they comply with the order. They’re just saying, no, I refuse to comply. Then it’s possible that it can go beyond that 30 days, but that’s not typical. Fines are more rare than common, but they are typically limited to a thousand or $3,000 depending on the circumstance. Another thing that the judge or the commissioner can’t do are change the permanent orders of the court on an enforcement motion.
The person bringing the contempt motion can’t say, Hey look, they’ve been held in contempt, so give me more custody or increase alimony, things like that. Now that’s a permanent order and if somebody wants to try to change the court orders, they’re going to have to file a petition to modify showing that there’s been a significant material change of circumstances and start the litigation over again. If it’s a child related issue, they’ll also have to show that it’s in the child’s best interest that the change be made. You can’t just do that on a simple enforcement motion.
What Exactly Does Someone Have To Prove In Order For The Court To Do Those Kinds Of Things?
The other side’s burden of proof is this: They have to show that there was an order in place the other party knew about it that they had the ability to comply and that they willfully and knowingly failed or refused to comply with the court order. That has to be proven by clear and convincing evidence, meaning something like 75% of the evidence. So, in a criminal case, the burden is beyond a reasonable doubt, at something like 95% of the evidence. In a lot of civil cases, the burden of proof is preponderance of the evidence, meaning 51% of the evidence just more likely than not. On a contempt motion, it’s a middle burden of proof, which is still fairly high clear and convincing evidence. Holding the other side to that burden of proof is important.
How Does Someone Defend Against That Kind Of Emotion? What Are Some Of The Most Common Defenses Used?
The first defense I’ll mention is the burden of proof of the other side. Clear and convincing evidence is a high burden and so you would show up and say, your Honor, they haven’t met the burden of proof because they haven’t demonstrated X, Y, and Z. They haven’t demonstrated all of the elements. Another thing is to attack the quality of their evidence. If the other side comes to court and they only have allegations but they don’t have evidence, you can argue that your Honor, they haven’t met their burden of proof, particularly if their affidavit is based on hearsay conclusory statements, statements that lack foundation, meaning they throw out this allegation but they don’t. It’s obvious that they didn’t observe it themselves, so how do they know that that had happened? And so, it lacks foundation and you haven’t explained how you know what say you know. It’s unsubstantiated belief rather than personal knowledge, and so for each statement that they make, you can attack the quality of that evidence.
If the other side is trying to get the court orders changed, then one defense is to cite to the court the Dayman versus Dayman case and other case law that says it’s inappropriate to try to change the court orders through a contempt motion. One common defense has to do with the clarity of the order. If the order is ambiguous, if it’s vague, if it’s unclear, then one common defense is, your Honor, I didn’t understand the court order. It is too vague, it’s too ambiguous. It can mean two or three different things, and so I did what I thought it meant, but the other side can’t prove that their interpretation of that order is correct. Another defense someone can make is that they lack the ability to comply. Your honor, I lost my job or some other circumstances has occurred. It makes it so that I’m no longer able to comply, I used to be able to comply with this and now I can’t.
That defense is only acceptable to a court if somebody has been making their best efforts, due diligence towards compliance. For example, let’s suppose that you have a thousand dollars alimony obligation and you can’t pay that much. You lost your job, you’ve got a new job, but it doesn’t pay as much. If you have been paying what you can, let’s say that’s $300 a month and filing a motion to get the court orders changed, filing a petition to modify saying, your Honor, there’s been this intervening event and I haven’t been stacking zeros. I’ve been paying what I could. That’s only been $300 a month. I acknowledge that I have not been able to pay the entire thing, but I haven’t been stacking zeros month after month. That defense is going to be much more acceptable to a court because the court’s going to believe you more when you say I don’t have the ability to comply anymore and here’s what I’m doing about it, that defense is not going to be very effective if you’re stacking zeros month after month, not filing a motion or a petition to change the court orders so that you can comply and those kinds of things.
Another common defense may not be to the finding of contempt of it, it might be to the sanctions that the other party is asking for. If the party is asking for severe sanctions or for some particular thing that you’re just really opposed to and they themselves are in contempt, they have violated court orders, then you can file a counter motion to have the other side held in contempt or otherwise prove to the court that your Honor, they’re asking for fairness when they’re not doing fairness, they’re asking for equitable relief when they’re not being equitable themselves. They’re coming to this court with what’s called unclean hands and because they have unclean hands, you shouldn’t grant them what they’re asking for. Yes, I am in contempt, here’s what I’m going to do about it, but as far as this big sanction that they’re asking for, don’t grant it because look at what they’re doing too. They’re not entitled to that kind of equitable relief or fairness.
What If Someone Actually Has Been Violating Court Orders? What Can They Do?
Comply to the extent possible, make their best efforts towards compliance, explain to the other side why they’re not complying fully and then file a motion or a petition with the court to change the court orders to get the court orders to a place where they can comply. Sometimes other rehabilitative efforts are needed. For example, let’s suppose that party failed to comply with a court order against domestic violence or harassing the other party. One thing that they can do beforehand is rehabilitative efforts such as taking an anger management class or a domestic violence assessment and complying with the treatment recommendations or if it’s a violation of an order against substance abuse, they can get themselves into a program or substance abuse counseling or to take a substance abuse assessment and comply with the treatment recommendations. If they show up to court having done nothing to remedy their attempt, the sanctions are likely to be harsher and the court’s going to be less pleased with that. But if they show up to court proactively doing things to remedy the problem, the court’s going to be more lenient with them, most typically.
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. A 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, they don 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, so 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.
How Could An Experienced Family Law Attorney Like You Help?
I or another attorney would be able to draft the opposition to the enforcement motion and know what evidentiary objections to make if they’re affidavits or portions of it or evidence or exhibits that they reference are somehow inadmissible. And I can indicate to the court why that is and what evidentiary objections are applicable. I can determine the best defenses, how to help rehabilitate someone that actually has violated court orders to help minimize the damage of those violations and help bring them into compliance in a way that the court is going to find acceptable. I can help them gather, organize, and present the evidence and present their case effectively in court. And if the other side brought the motion frivolously and we’re able to demonstrate that, we’ll be able to ask the court in the right way using the right statutes and language for reimbursement of attorney’s fees for the necessity of having to defend against the motion.
I’m here with experienced family law attorney Kelly Peterson who assists clients defending against contempt and enforcement motions in making sure the process is fair. If this is an issue for you or for 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!
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