Conditions of Contempt

By William Halaz

Attorney, Cordell & Cordell

In my first series of articles on contempt of court, I addressed the legal concept of contempt and what it means.

A typical excerpt of a Motion for Contempt reads like this: “Respondent’s failure to abide by the Judgment and Order of Dissolution, which included the parties’ Parenting Plan, is willful, deliberate, contumacious, and without just cause or excuse.”

In this article, I will outline the conditions that must be met for contempt.

What conditions must be met?

The first condition is that the individual must knowingly fail to follow the court’s order. You wouldn’t be expected to follow an order you didn’t know about. We have already briefly discussed the main way to show that a person knows they are supposed to perform (or refrain from) an action: by looking at the court’s order.

The most common way to show someone knew they were required to perform or refrain from an act is to show that you or the other individual has signed the settlement agreement, or you or your attorney were sent a copy of the court’s final order.

Further, it must be shown that the individual alleged to be in contempt has actually failed to do whatever it is they were ordered to do. While this may seem straightforward for child support payments, or even changing the title to a vehicle, the waters can become murky when trying to prove a party’s failure to use their best efforts to foster respect, love and affections of a child toward the other parent, or their failure to consider reasonable changes to a parenting plan suggested by the other parent.

Here is where we see the difference between what we know and what we can prove. Sometimes, the only evidence available for these types of contempt is testimony from a child caught in the middle.

This is why we often see contempt charges brought alongside motions to modify.

The second condition is that the individual’s failure to follow the court’s order must be willful, deliberate, and contumacious (stubbornly disobedient). To prove this, you must show that the person has the present ability to do what they were told or voluntarily placed themselves in a position where they are unable to pay child support, for example.

This is often a stumbling block in cases involving financial contempt whether it’s child support, maintenance, or even the apportionment of debts in a dissolution proceeding.

Just as you shouldn’t be punished you for failure to follow an order you didn’t know about, you also should not be punished for failing to follow an order that you don’t have the ability follow.

That is not to say that your liability or responsibility does not exist. As many men know, a child support responsibility does not stop or decrease on its own when you lose your job or take a large pay cut. The child support payment agency will keep track of the amount owed, so that when you do have the ability to pay once again, the other party will be made whole.

This is why it is important to have your judgment and order of support modified if you take a substantial cut in pay or if you are laid off before a large arrearage is accumulated.

The court is unlikely to discharge an arrearage already accrued. However, they will be more likely to modify your support amount if the change is shown to be substantial and continuing. Again, we see modifications and contempt charges often go side by side.

Finally, the individual’s failure to follow the court’s order must be without just cause or excuse. Part of this is set out above, with support payments and an inability to pay as an excuse.

Another area where there is often a just cause or excuse for failure to obey is with regards to the marital home.

An example of this occurs when an individual is ordered to make the home available to be shown to an appraiser or realtor with reasonable notice. Something could occur that is out of the responsible individual’s hands, such as a natural disaster, a trip to the emergency room, or even something as simple as being misinformed as to the time they were coming to see the home.

Here, the just cause or excuse must be proven. Simply saying, “I was told the wrong time” will not hold water.

However, an e-mail stating the appraiser is coming at 2 p.m. when they in fact were coming at noon would be strong evidence to show why you were at the park playing softball until 1:30 p.m.

 

Read other articles in our contempt series:

 

Note: While this article addresses some of the issues that arise when preparing for a contempt proceeding, you may have additional questions regarding your own specific situation. You also may be from a state where the applicable laws differ significantly from Missouri, where I practice.

You should not rely on this article as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation.

Cordell & Cordell has men’s divorce lawyers in 17 states.

 

Attorney William HalazWilliam Halaz is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor’s degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.

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6 comments on “Conditions of Contempt

    Can a person be held in contempt of court if no documents were filed or signed by a judge at the time of the divorce. For example a MOU was signed and notarized but not filed with the divorce – so nothing was ordered by any judge etc. the MOU was a good faith document which both parties agreed did warrant any further legal inclusion other than signing the MOU. What happens in this case

    I have a unique sitiation. My ex hooked up with my gals ex. My ex coerced my 2 kids, from a former marriage, their mom passed away some time ago, out of my home. They were getting ss and she stated in a text to me that she would get my kids and their ss money. It doesn’t end there, we went to court soon after for the divorce and I was basically intimidated and coerced where if I didn’t give her what she wanted she would ask for the max amount of support, etc so I screwed myself. To make things worse, her, now, husband has faced me twice and has tried to get me to hit him, (he’s a supervisor at a renowned musical instrument store), knowing I have 2 former assault charges here in missouri from the 90’s so therefor he wants me locked up. They got together without regard to the kids and have kept on hitting us both where it counts. Is this not contempt on the part in the dissolution that states neither party is to molest or malign each others lives? There’s a ton more to add but not enough time or room on here……

    Needing guidance and help in missouri

    I am at the point of filling a pro see MOTION OF CONTEMPT. In brief my ex is the step daughter of a local C P S judge which makes them think they can apply their own rules to the decree. I see my son when her (my ex mother) want me to or she makes plans with her. I don’t get to attend any of my son’s schools activities or dr. visits. Granted they have loads of money and or influences within the legal system but facts are facts.
    Note that i am a 58 year old black male and my ex is a 43 year old white female. Our son is 3 years old. The decree stated that neither of us were to have over night guest before the child was 3 and she had a small time drug dealer and a known crack smoker living in the house while her our son was 2 and both were her lover. Irritated by her actions i was pleaded with to move back in for the sake of our son by her parents. The judge using his influences to get a fraudulent protective order set aside for me to rescue their out of control daughter. All of which I have evidence. I moved back in for 11 months until mom realized I was not to be bought or controlled by them.

    Outside Modification fo the Final Decree–Avoidance of the the Final Decree’s Orders
    It seems that Contempt of Court applies more to the family issues (child upport) than a divorce between adults with division of moderate assets. The Judge ordered a division of assets on 6/10/13 with the present cssh assets divided 50/50 and I was to receive these assets on 7/1/2013. It took a letter from my attorney threatening sanctions before we received a response and false promsies on July 30, 2013 In that resposne they wanted me to pay 1/2 of his tax ramifiaitons on the cash value policies. I agreed subject to the receipt of the insurancecompany’s calculations and the receipt of my personal belongings–includidng 2 coin collections valued at a 4 digit medium figure. He denies their existance. He is a coin and stamp collector, and I personally believe that he has hidden or sold them. His remark in the Transcripts as to the whereabouts of the coins was the only time he hesitated/stammerred when he answered the question with an “Uhh….”. He even stated that he had “gotten rid of his coin collection.” Not going to happen. He covets his collections too much–and mine too. So, on 10/29/13, I have had to fight for 4 of the accounts–an IRA rollover, buyout on the marital home, cash value in life insurance policies and a QDRO. The QDRO is complete with payments starting 11/1/13 and the rollover has been completed. However, all assets were due by 7/1/13 (excluding the refinance buyout) and the cash values in the life insurance policies have not been received. In fact that is at a standstill because the Insurance Company will not release any information to me without his written consent. The Judge gave my husband 4 months to complete the refinance buyout (he should have been given only 2 months) with a due date of 10/8/13. Nothing happened. This 4 month period of time gave my husband full reign to delay–to find reasons not to close. As of this date he has not received loan approval. They have offered 2 closing dates with no follow up. And, of course, I am still paying my attorney for her time for almost 5 months after the Final Decree. He is a real estate attorney who claimed at the final hearing that there was an outstanding lien in my name on the marital home –all of this coming as a complete surprise as my credit was run 3/20/2013 witht a 731 FICO and no derogatories. He made this statment using information from a title report that was over 1 year old when the lien existed in 2012. The lien/judgment fell off my credit report and title on 11/5/12, but my attorney and the Judge took him at face valuE. We should have asked for evidence. He has since been proven wrong. But, all of his granstaning has caused this 5 month delay. As of this date we are goin back to court. I have paid $21,000 in attorney’s fees–and that is his goal– to drain me dry. Now, outside of court they want to modify the Judge’s order on the life insurance so that I pick up some of his tax ramifications. The amount is a moderate figure and I have agreed PROVIDED THAT i GET MY PERSONAL BELONGINGS. It is obvious he is stalling. I wich that another attorney could give me an idea of an end around run. It seems as I face 3 attorneys every time I am in court that there is a clique of protection–in other words my attorney does not want to pursue sanctions. Any response from his side came only when my attorney threatened sanctions. If ever there was a reason to file Contempt of Court charges, this is it. This, of course, does not include the physical and mental drain. I hope that someone out there–atttorney of Plaintiff can respond to my situation. Remember my ex-sposue is an attorney and knows just how far he can push the System and then respond. What is fair for me in thsi situation? REGARDS HANNAH PIEROG–Schaumburg, IL

    While it seems useful in theory to bring a contempt, my humble opinion is that it is not practical and just adds fuel to the fire between already contentious parties. I’d rather take the same money used in bringing the contempt and dump it into a collection action. As an aside, I am thankful for the mechanism of the wage assignment because without it, I think I would see many more contempt actions being brought.

    Interesting writing and deffinition.
    However, I noticed that you’ve always hit upon by way of example. Men – who don’t pay child support. Obviously you know there are many, many women ordered by the courts to pay child support who never do. And of the system that consistently finds excuses for them to aid them in this matter too. It’s almost as if you’re saying, it’s easier to show when a Man is in contempt then it is to show when a woman is in contempt… At the very least that is what I was reading, perhaps I read into it too much. but it that kind of division, that kind of manipulation that keeps Men, paying an ungodly amount of money to an Attorney who is not prepared to bring the woman into court for contempt. It’s an Interesting position for me to be in as a Man who has done both. And while I could not prove (In the Courts eyes) that what she did to me was deliberate… I was able to prove “Fraud against the Court” ironically with the very same evidence and information.

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