Family Law Contempt Attorney - Talkov Law
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Family Law Contempt Attorney

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Experienced Family Law Contempt Attorney

Law Firm Specializing in Contempt Actions Filed in the Inland Empire of Southern California

Contempt Proceedings in Family Court

A party subject to a valid family court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order may be subject to a contempt adjudication and statutory penalties thereto (Cal Civ. Proc. Code § 1218 & 1219). Family court orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guarantee against imprisonment for nonpayment of “debt” (U.S. Const. Amend. XIII; Ca Const. Art. I § 10). However, an order or judgment is not a “debt” within the meaning of the constitutional protection simply because it requires the payment of money.

Contempt of Court in California Family Law- Quasi-Criminal Proceedings

A party to a family court proceeding who takes it upon him or herself to bring a contempt action and hold the opposing party to answer, is acting as a “private prosecutor.” In California, the face mandatory Judicial Council form, Affidavit for Contempt, expressly states “A contempt proceeding is criminal in nature” and advises the citee that “the possible penalties include jail sentence.” As a result, constitutional guarantees afforded to defendants held to answer for charges in criminal court are likewise afforded to the citee in contempt proceedings in family court (e.g. California Evidence Code 940 Exclusion of Self-Incriminating Information from Discovery in Family Law Proceedings).

Elements of a Cause of Action for Contempt [Prima Facie] – What You Must Prove

Valid Court Order:  The charging affidavit must specify the order the citee allegedly violated. A contempt adjudication cannot stand if the underlying order is invalid. The court can presume validity unless the order is void on its face. Thus, the citee normally bears the burden of showing invalidity of the underlying order. Vague court orders that are not clear and specific are difficult to enforce in contempt proceedings (this is common with child custody and visitation order violations).

Knowledge of the Court Order:  The charging affidavit must set forth facts showing that the citee was on notice or had knowledge of the underlying order (a jurisdictional prerequisite to a valid contempt adjudication). In most situations, the citee personally received a copy of the order or was present in court when the court order was made. This is especially true when the underlying order was entered by stipulation of the parties (e.g. Child Custody and Visitation Agreement)

Willful Disobedience of the Court Order:  The charging affidavit must allege specific facts showing the citee’s willful disobedience of the underlying order to complete a prima facie case of contempt. For example, with child support and spousal support orders or orders to pay attorneys fees, the citee may raise the defense that he or she does not have the present ability to comply with the court order. Depending on the specific factual situation, the ability to comply may or may not be a defense or an element that must be shown to prove contempt. This can become a complex factual dispute in contempt proceedings because the ability to comply is a question of fact in each case.

What kinds of Family Court Orders are Enforceable and Punishable in Contempt Proceedings?

Contempt of court for failure to pay child support, spousal support, and family support

Support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are not money judgments in civil actions for the payment of a “debt” within the meaning of the constitutional guaranty against imprisonment for debt and thus clearly are enforceable by contempt. When the family court initially issues support orders, the court necessarily must determine the obligor’s ability to pay (Cal Fam. Code § 4320(c) spousal support; Cal Fam. Code § 4053(c),(d) child support). Since the court has already determined the citee’s ability to pay the underlying amount ordered, present ability to pay is not an element of a prima facie contempt case under these circumstances. Rather, the inability to pay is an affirmative defense that must be asserted and proven by the citee. Contempt proceedings can be brought even if part of the support amount is paid or if support is paid late. Of course, the cost/benefit analysis of bringing a contempt action for late or partial payment is something that should be discussed with a skilled family law attorney.

Contempt of court for failure to follow an order to seek work

Willful failure to follow a court order to seek employment or receive job training can subject that party to contempt of court proceedings. These orders may sound like suggestions or boilerplate additions to a support order, but they are directives to perform a specific act. If a parent has failed to follow a court order to seek employment or training for that parent’s mutual obligation to support their children, that parent may face contempt proceedings. However, such orders cannot be enforced by contempt in spousal support proceedings.

Contempt of court for violation of California child custody and visitation orders

The court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an order restraining relocation with the child. Unfortunately, custody and visitation orders are probably the most violated, but least enforced orders in family court. It is far too common for a parent to violate the other parent’s joint legal custody rights and willfully fail to adhere to the parenting schedule set forth by the court order. In these situations, the other parent may proceed with a contempt action. Contempt proceedings are not always the best remedy in these circumstances because all a contempt can offer is punishment for past behavior, rather than modifying the orders to prevent the issue moving forward, which is generally what the affected parent actually wants.

In situations where the child simply refuses to go with the other parent, proving the willful disobedience of the custodial parent may be a losing battle. This is a common scenario in California child custody cases, particularly when teenagers are involved. There are a variety of reasons for a child to refuse visitation with a parent, including but not limited to parental alienation. The general rule is that a custodial parent who has control over the child and the ability to make the child available for visitation may be held in contempt for violation of a visitation order. However, exactly what constitutes “control and ability” under such circumstances can be unclear. Anyone who has raised a teenager knows that making them do anything is not an easy task. They are generally too large to physically move them against their will, and they are not always the most amenable to directives issued by parents. Much depends on the age of the child in such factually specific circumstances.

Contempt of court for failure to pay attorneys fees and costs

Attorneys fees in family law cases fall into two categories. Need-based attorney fees and costs are awardable by statute in certain family law proceedings (Cal Fam. Code § 2030, 2032). The award is based on a law-imposed obligation, not arising out of a money judgment for a debt, and is thus enforceable by contempt because it is in the nature of support. The second category of attorney fees in family law cases are ordered against a litigant as a sanction to punish the litigant for their conduct and/or dissuade said conduct moving forward (Cal Fam. Code § 270, 271(a)). Sanctions are generally not enforceable by contempt because the sanction itself is a punishment.

Contempt of court for violation of property division orders

In a divorce or legal separation proceeding, a spouse who fails to relinquish a specific item of property or to pay a portion of a specific fund of money pursuant to an order dividing community property is subject to contempt proceedings. The obligation to perform under the terms of such an order is “law-imposed” rather than a “debt” because spouses have a statutory right to an equal division of community property upon termination of marital status (Cal Fam. Code § 2550 et seq.).

Contempt of court for violation of domestic violence restraining orders & family court protective orders

Pursuant to California Penal Code Section 273.6, the court may properly invoke its contempt power for noncompliance with valid protective orders and restraining orders issued in a domestic violence proceeding brought under the Domestic Violence Protection Act (Cal Fam. Code § 6218). This is also a remedy available for violation of domestic violence restraining orders issued under the parent family law case (e.g. paternity case, etc.).

Contempt of court for failure to comply with mandatory declaration of disclosure orders

The California Family Code specifically lays out the procedure for the service of both a preliminary and a final declaration of disclosure during a divorce proceeding. Pursuant to Family Code Section 2107, the spouse who has been ordered to comply with his or her disclosure requirements and willfully fails to do so can be held in contempt. Generally, prior to filing an OSC re Contempt, the complying spouse should and does seek other remedies available to him or her pursuant to Family Code § 2100 et seq. One available remedy is a motion to compel (Cal Fam. Code § 2107(b)(1)). If the noncomplying spouse fails to file a sufficient response, the complying spouse may seek monetary sanctions and evidentiary or issue sanctions, “in addition to any other remedy provided by law” (Cal Fam. Code § 2107(c)). Disclosure issues may also arise in annulment proceedings, especially where one or both spouses was unaware of the invalidity of the marriage (putative spouse).

Contempt of court proceedings against a spouse or parent’s employer for failure to comply with a wage garnishment

Wage garnishments are very common in family law actions and are often used to ensure timely payment of support and often prevent bimonthly quibbling between parties over the timing and method of payment. If a spouse or parent’s employer willfully fails to comply with a wage garnishment (or earnings assignment order) that relates to the payment of support, that employer may be subject to contempt proceedings. Employers generally have no reason not to comply with a valid wage garnishment, so this most often arises when the employer is related to or has some personal connection to the employee. Once an employer is informed that he or she is violating a court order and may face contempt proceedings, they are more likely to comply with the order regardless of any relationship they have with the employee.

Notably, if an employer violates a wage garnishment order and the employee had no control over that situation, the employee may not have contempt liability because he or she did not willfully violate the court order. The employee is still responsible for the underlying support amount, however.

Family Court Orders Unenforceable by Contempt – Types of orders that are not punishable in Contempt Proceedings

Marital Settlement Agreement (MSA) obligations not merged into the judgment

Obligations arising out of a marital settlement agreement are not enforceable as court orders, much less by contempt, unless specifically “merged” or incorporated into the final judgment.

Orders or Agreements limiting or assigning debt payment liability

Obligations arising out of the division of the community estate requiring a spouse to make payments in satisfaction of a community liability is a “debt” not enforceable by contempt unless the spouse who is pursuing the contempt can show that it is an integral part of a support order.

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Statute of Limitations for Violation of a California Family Law Court Order – Limits on When a Contempt Can be Filed

Contempt proceedings brought for noncompliance with a court order made pursuant to the California Family Code are subject to a statute of limitations of California Code of Civil Procedure Section 1218.5.

How Long do Parties Have to Bring a Contempt Action for Violation of Support Orders?

A contempt cause of action for alleged failure to pay support must be commenced within 3 years from the date the payment was due (Cal Civ. Proc. Code § 1218.5(b)). Contempt allegations must be broken down into separate “counts” for each month payment was not made in full.  Each month within the 3-year statutory period for which  payments were in default is punishable as a separate count of contempt (Cal Civ. Proc. Code § 1218.5(a)).

How Long do Parties Have to Bring a Contempt Action for Violation of Any Other Family Law Court Orders?

A contempt cause of action for alleged failure to comply with any other order made under the Family Code, including child custody and visitation orders, restraining orders, property division orders, attorney fee orders, etc., must be brought within 2 years “from the time that the alleged contempt occurred” (Cal Civ. Proc. Code § 1218.5(b)).

Responding to an Order to Show Cause re Contempt – Common Contempt Defenses

Before the hearing on the OSC re Contempt, the citee may file an opposing affidavit answering the charge, admitting or denying it, or may move for a discharge/demurrer without answering (Cal Civ. Proc. Code §2015.5). The opposing affidavit is a declaration made under penalty of perjury, questioning the adequacy of the moving party’s charging affidavit and/or raising a sufficient excuse or justification in defense of the charge.

The difference between an affirmative defense to contempt charges and questioning the adequacy of the charging affidavit is sometimes unclear, even to seasoned attorneys. For example, contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not “willful” because the citee lacked the ability to comply or for whatever other reason did not willfully violate the court order. Willful disobedience is one of the elements of contempt the moving party must prove beyond a reasonable doubt, but it may also be an affirmative defense to the contempt charges depending on the allegations.

When the inability to comply is set forth as an affirmative defense, the citee does not meet his/her burden of persuasion with conclusory declarations; he/she must set forth evidence showing complete performance was impossible. Further, disobedience of a valid court order is not excused by the assertion that the citee was acting on advice or instruction of counsel. In fact, attorneys who encourage or instruct such defiance can be held in contempt themselves for their own recalcitrant conduct, and may even face discipline from the California State Bar.

Motion For Discharge, Demurrer, Motion for Dismissal of an Order to Show Cause re Contempt

In lieu of an answer, the citee can move for a discharge of the contempt citation, dismissal of the action, or demurrer on the following grounds:

  • The charging affidavit fails to allege facts sufficient to make out a prima facie case of contempt.
  • The same charge was previously made on the same facts and the allegation was previously discharged on the merits.
  • The order expired before the alleged violation date.

What to Expect at a Contempt Hearing in California Family Court

Either the cited (or his or her attorney) must appear at the hearing on the OSC re Contempt. The court may proceed in the absence of the alleged contemnor or his or her attorney, if it finds the OSC re Contempt and Affidavit for Contempt forms were properly served and the failure to appear was voluntary (Cal Civ. Proc. Code § 1217). At the hearing, the moving party must present admissible evidence sufficient to prove the elements of the alleged contempt, beyond a reasonable doubt. However, the charging and opposing affidavits are hearsay and thus inadmissible over objection (Cal Evid. Code § 1200(a), (b)).

Attorney’s Fees and Costs for Contempt Action

In addition to the penalties above, a party found in contempt for violating a court order “may” be ordered to pay the charging party’s reasonable attorney fees and costs incurred in connection with the contempt proceeding (Cal Civ. Proc. Code § 1218(a)). The court is not mandated to award attorneys fees; it is a discretionary function of the court.

Contact Our Experienced Family Law Contempt Attorney Now

Litigants can rely on the experience of our Riverside contempt attorneys in filing, prosecuting, and defending contempt actions. Our Southern California family law firm fights hard to make the legal system work for our clients. Our attorneys have litigated contempt cases throughout the State of California, including Riverside, Los Angeles, Orange and San Bernardino counties. Call the experienced family law attorneys at Talkov Law at (951) 888-3300 or contact us online for a free consultation about your case. Learn how our experienced contempt attorney, Colleen Sparks, can guide you through the court process in a prompt and clear manner.