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Family Law Contempts 2013 Bench Book

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Family Law Contempts 2013 Bench Book Family Law Contempts 2013 Bench Book By Stephen A. Kolodny FAMILY LAW CONTEMPTS By STEPHEN A. KOLODNY, ESQ. UPDATED: JULY, 2013 Table of Contents I. IN GENERAL - WHAT IS A FAMILY LAW CONTEMPT PROCEEDING? ..........1 A. Quasi-Criminal ......................................................1 B. The Hicks v. Feiock Approach - A Contempt Is Either Civil Or Criminal, Depending Upon the Relief Sought ......................................1 C. Civil v. Criminal Remedies ............................................2 1. Civil Contempt ..............................................2 2. Criminal Contempt ..........................................3 D. Procedural Requirements ..............................................3 1. Informed Consent ............................................3 E. The Aftermath of Hicks v. Feiock .......................................5 F. Revocation of Probation and Prior Conduct of Probation ...................7 II. THE ELEMENTS OF CONTEMPT AND PROOF THEREOF ......................7 A. Non-Support and Non-Attorney Fee Contempts ...........................7 B. Support and Attorney Fee Contempts of Recent Origin .....................7 C. Family Support Orders ...............................................8 D. Spousal Support Orders ...............................................8 E. Visitation Orders .....................................................8 F. Lawful Order ........................................................9 G. Knowledge of The Order ..............................................9 H. Ability to Comply ...................................................10 I. Willful Disobedience of The Order .....................................14 III. TYPES OF ORDERS FOR WHICH A CONTEMPT PROCEEDING IS PROPER .....15 A. Family Law Orders ..................................................15 B. Child Support Orders ...............................................15 C. Family Support Orders .............................................16 D. Spousal Support Orders .............................................16 E. Orders for Payment of Debts As an Element of Support ..................17 F. Support Orders Based Upon Settlement Agreements .....................17 G. Support Orders Based Upon Agreements Incorporated Into Foreign Judgments .........................................................18 H. Child Custody and Visitation Orders ...................................18 I. Intentional Violation of A Rule of Court ................................18 J. Orders For In-kind Division of Community Assets ........................19 K. Attorney Fees and Costs .............................................20 FAMILY LAW CONTEMPTS By Stephen A. Kolodny 2013-07-08 CONTEMPTS.wpd TOC -1- L. Discovery Orders ...................................................20 M. Impugning Integrity of Court .........................................20 IV. TYPES OF ORDERS FOR WHICH A CONTEMPT PROCEEDING IS IMPROPER ..21 A. If a Contempt is based on any of the following, a motion for dismissal should be made to the Court at the outset of the hearing, or earlier. .........21 1. Equalizing Payments ........................................21 2. Pre-January 1, 1970 Integrated Agreements .....................21 V. STATUTORY PROVISIONS ..................................................21 A. In General .........................................................21 B. Statute of Limitations ................................................22 C. Attorney Fees .......................................................22 VI. PLEADING THE CONTEMPT ...............................................23 A. Court Forms. ......................................................23 B. Indirect Contempt. ..................................................24 C. Importance of the Order to Show Cause Declaration. ....................24 D. Personal Service of Contempt. .........................................24 E. "Notice Waived." ...................................................24 F. Only One Count Per Month for Child, Family or Spousal Support Based Contempts. .........................................................24 G. Non-Support Based Contempts. .......................................25 H. Declaration May Be Amended. ........................................25 I. Piecemeal Contempts. ................................................25 J. Prior Orders. .......................................................25 K. Authority of Department of Child Support Services (DCSS). ...............26 L. Welfare. ...........................................................26 M. Amendments. ......................................................26 VII. SERVICE OF THE CONTEMPT CITATION ...................................26 A. Who Can Serve? ....................................................26 B. Personal Service. ...................................................26 C. Service by Registered Process Server ...................................26 D. Alternate Service Methods. ...........................................26 E. Service on Attorney. .................................................27 F. Concealment by Party. ...............................................27 G. Reasons for Personal Service. .........................................27 H. Courtesy Copy. ....................................................27 VIII. THE HEARING .............................................................27 A. Nature of the Proceeding. .............................................27 1. Criminal Contempt .........................................27 2. Civil Contempt .............................................28 B. Pleading Guilty .....................................................28 C. Personal Appearance of Citee . Is It Required? .........................28 D. The Power of the Court to Order Witnesses to Attend Contempt Hearings ....29 FAMILY LAW CONTEMPTS By Stephen A. Kolodny 2013-07-08 CONTEMPTS.wpd TOC -2- E. Right to Counsel and Right to Remain Silent .............................30 F. Right to Speedy Trial ................................................33 1. Arraignment. ..............................................33 G. Right to Stay if Criminal Filing Is Reasonably Possible. ...................34 H. Degree And Manner Of Proof .........................................35 I. Citee May Not Be Called As an Adverse Witness .........................35 J. Citee's Spouse May Be Called to Testify .................................36 K. Payments to Third Parties ............................................37 IX. DEFENSES AND TACTICS ...................................................37 A. Court Can Dismiss Contempt on Its Own Motion, in the Interests of Justice ..37 B. Defects In the Order Sought to Be Enforced ...............................37 C. Paternity Cases - Child Support .......................................38 D. Orders on Appeal ...................................................39 E. Orders Indicated But Not Actually Made ................................40 F. Orders at Order to Show Cause Hearings - Must Be Written to Enforce ......40 G. Orders Which Contain No Mandatory Directions .........................41 H. Orders Which Are Uncertain, Vague Or Ambiguous ......................41 I. Insufficient Factual Basis For the Issuance Of the Injunction In the First Instance ...........................................................42 J. Orders Based Upon A Statute That Requires Findings ....................42 K. Orders Which Are Constitutionally Overbroad ..........................42 L. Statute Of Limitations ...............................................43 M. Waiver Or Estoppel ..................................................44 N. Double Jeopardy ....................................................45 O. Corpus Delicti .......................................................47 P. Offsets Due to Citee Are Not Matters Of Defense .........................48 Q. Mitigation Arguments ................................................48 R. Credit For Retirement Or Disability Pay ................................49 S. Bankruptcy ........................................................49 T. Unemployment – No Longer an Easy Defense ............................49 U. Inability to Comply, Including Having No Income With Which to Pay Support, Is Now an Affirmative Defense ................................50 V. Dismissal of Appeal If Party Is In Contempt .............................53 X. DISCOVERY ...............................................................53 XI. TRIAL BY JURY - NO LONGER A VEXING PROBLEM .........................56 A. Right to Jury Trial? .................................................56 B. Constitutional Rights. ................................................57 C. Penalty. ............................................................57 D. Multiple Counts May Result in Jury Trial? ..............................57 E. Does Length of Sentence Determine Right to Jury Trial? ..................57 F. Federal Law. .......................................................58 G. When to file ........................................................59 H. Considering "Contemplated Sentence.” ................................59 I. Limiting Sentence to Avoid Jury Trial ..................................59 FAMILY LAW CONTEMPTS By Stephen A. Kolodny 2013-07-08 CONTEMPTS.wpd TOC -3- J. Effect of Voluntarily Limiting Sentencing. ..............................59 K. Effect of Aggregate Sentencing on Multiple Counts. .......................59 XII. PENALTIES FOR CONTEMPT - SENTENCING ................................60
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