Tag Archives: Contempt in California family law

Order to Show Cause for Contempt in California Family Law proceedings, part two

The filing of an order to show cause for contempt in a California family law proceeding is the topic of this blog post which is is part two of the series and discusses the remaining issues that will be decided at any contempt hearing.

The charging affidavit in support of the order to show cause for contempt must set forth facts showing the citee’s notice or knowledge of the underlying order as this is a a jurisdictional prerequisite to a valid contempt adjudication.

Knowledge can be shown by personal service of a copy of the order, the citee’s presence in court when the order was made, the citee’s signature on a stipulation upon which the order was based, or proof that the citee previously sought relief related to the order such as a modification.

To complete a prima facie case of contempt, the charging party must allege facts showing the citee’s willful disobedience of the underlying order.

In making a family law support or attorney fees/costs order, the family court necessarily must determine the obligor’s ability to pay. Since the court has already determined the obligor’s ability to pay the underlying order, present ability to pay is not an element of a prima facie contempt case predicated on nonpayment. Rather, inability to pay is an affirmative defense that must be proved by the citee.

A custodial parent can be held in contempt of a visitation order only when he or she has sufficient control over the child so as to have the ability to make the child available for visitation. This is a fact question in each case. A parent probably has sufficient control over minor children of “tender years” to compel them to visit with the other parent; failure to make such children available for visitation probably would be punishable as contempt. But the result may be otherwise when the children get older and it becomes more difficult to exert parental “control.” If a teenage child refuses to visit with the noncustodial parent, through no fault of the custodial parent, the custodial parent lacks the ability to comply with the order and cannot be held in contempt; in these cases, the noncustodial parent is probably left without a remedy.

The citee may answer the charge, admitting or denying it, or may move for a discharge without answering.  In response to the contempt charge, and before the hearing, the citee can file an opposing affidavit or declaration under penalty of perjury,  questioning the adequacy of the moving party’s charging affidavit or raising a sufficient “excuse or justification” in defense. The opposing affidavit together with the charging affidavit frame the issues to be tried in the proceeding.

Contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not “wilful” because the citee lacked the ability to comply. The citee does not meet this burden, however, with conclusory declarations. He or she must set forth evidentiary facts showing why complete performance was impossible. Moreover, default under the order will not be excused if the responding allegations disclose that the inability to comply was self-imposed for the purpose of avoiding compliance.

Note also that disobedience of a lawful court order is not excused by the fact the citee was acting on advice of counsel. Moreover, attorneys who encourage such defiance can be held in contempt themselves for their own recalcitrant conduct.

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

The charging affidavit does not make out a prima facie case of contempt.

The order expired before the alleged violation. But if the order was in effect at the time of the violation, discharge will not be granted simply because it has expired or been superseded at the time of the contempt proceedings.

The same charge was previously made on the same facts and the citee was discharged on the merits.

Normally, either the citee or his or her attorney must appear at the hearing; and, if neither appears, a bench warrant can issue to secure their presence. But it is error for the court to proceed in the absence of the alleged contemnor or his or her attorney, unless it finds the OSC and Affidavit for Contempt forms were validly served and the failure to appear was voluntary.

The charging and opposing affidavits are hearsay and thus inadmissible over objection. Evidence Code §§ 1200(a),(b).

The penalties upon a contempt adjudication are prescribed by Code of Civil Procedure §§ 1218 and 1219.

Upon a contempt adjudication for failure to comply with a court order made under the Family Code, the court “shall order” community service and/or imprisonment as prescribed by Code of Civil Procedure § 1218(c).

Upon a first finding of contempt, the party found in contempt (“contemnor”) must be ordered to perform community service of up to 120 hours, or to be imprisoned up to 120 hours (five days), for each count of contempt.

Upon a second finding of contempt, the contemnor must be ordered to perform up to 120 hours of community service, in addition to imprisonment of up to 120 hours (five days), for each count of contempt.

Upon the third or any subsequent finding of contempt, the contemnor must be imprisoned for up to 240 hours (10 days) and be ordered to perform up to 240 hours of community service, for each count of contempt.

The contemnor must also be ordered to pay an “administrative fee,” not exceeding the “actual cost” of the contemnor’s administration and supervision, while assigned to a community service program.

With regard to child, family or spousal support contempts, each month in which there was a default may be alleged as a separate count of contempt and punishment imposed for each count proved.  This provision means that each count alleged in one charging affidavit may result in one “finding of contempt”; but that the specified community service and imprisonment penalties may be aggregated for each of the counts proved.

As an example: One charging affidavit alleges five months’ default in support payments, each as a separate count. If the citee has not yet been adjudicated in contempt of a Family Code order, proof of each count in a single proceeding will amount to a “first finding of contempt” under Code of Civil Procedure § 1218(c)(1); but the citee may be ordered to perform up to 600 hours of community service or be imprisoned for up to 600 hours (25 days).

In addition to the fine, community service and imprisonment penalties discussed above, a party (or party’s agent) 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. Code of Civil Procedure § 1218(a).

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

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Order to Show Cause for Contempt in California Family Law proceedings, part one

An order to show cause for contempt in California family law proceedings is the topic of this blog post which is part one of the blog post series on contempt in California family law proceedings.

Under California law a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties. Code of Civil Procedure §§ 1218 & 1219.  As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders.

In California a contempt proceeding in a family law case is initiated by the filing of an Order to Show Cause and Affidavit for Contempt with the Court to obtain a hearing date. The person who is alleged to be in contempt must be personally served with the Order to Show Cause and Affidavit for Contempt at least 16 Court days before the hearing.

Family law orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guaranty 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 guaranty against imprisonment for “debt” simply because it requires the payment of money. As discussed below, most (but not all) family law orders and judgments are deemed based on a law-imposed obligation (not “money judgments in civil actions for debts”) and thus are enforceable by the court’s contempt power.

Child, spousal and family 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.

Child custody and visitation orders do not impose a “debt” obligation. Thus, e.g., 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 injunction restraining relocation with the children.

Need-based attorney fees and costs are awardable by statute in marital proceedings. Family Code §§ 2030/2032. The award is based on a law-imposed obligation (not arising out of a money judgment for a “debt”) and thus is enforceable by contempt.

A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt. The obligation is “law-imposed” (not a “debt”) because based on the parties’ statutory right to an equal division of community property upon termination of marital status. See Family Code § 2550 et seq.

The court may properly invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding. Penal Code § 273.6 misdemeanor penalty for intentional and knowing violation of Family Code § 6218 protective orders.A spouse who has complied with the statutory “declaration of disclosure” requirements in marriage dissolution proceedings Family Code § 2100 et seq. has various statutory remedies against the other spouse who has failed to comply. One such remedy is a motion to compel a further response Family Code § 2107(b)(1)). If the noncomplying spouse fails to file a sufficient response, the complying spouse may seek monetary sanctions “in addition to any other remedy provided by law”. Family Code § 2107(c).

The contempt remedy for noncompliance with a court order made under the Family Code is subject to a statute of limitations.  Code of Civil Procedure § 1218.5.

For an alleged failure to pay child, family or spousal support, the contempt action must be commenced no later than three years from the date the payment was due.

A contempt cause of action for nonpayment of support may be broken down into separate “counts” for each month payment was not made in full. Thus, the fact the obligor stopped (or fell short in) payments over three years ago is not fatal to a contempt remedy: Each month within the three-year period for which payments were in default is separately punishable as separate counts of contempt.

A contempt action to enforce any other order made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.”

In California a contempt proceeding in a family law case is initiated by the filing of an Order to  Show Cause and Affidavit for Contempt with the Court.  The person alleged to be in contempt (“citee”) is then served with a copy of the Order to  Show Cause and Affidavit for Contempt.

The facts constituting the contempt must be alleged by an “affidavit of facts,” setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt as discussed below.  Code of Civil Procedure § 1211(a).

However, a deficient charging affidavit may be amended at any stage of the proceeding. And, if there is no objection to the sufficiency of the charging affidavit, jurisdiction to adjudicate contempt may be established by facts proved at the contempt hearing (in which case, the court “shall cause the affidavit or statement to be amended to conform to proof”).

The citee must be formally notified of the charge and of the time and place for the court hearing on the charge. Service of the notice must be effected in a manner authorized for service of summons; an OSC re Contempt is not properly served by the more liberal Code of Civil Procedure § 1010 et seq. methods for service of motions or OSCs generally. Code of Civil Procedure § 1016;  Family Code § 215.

Unlike ordinary motion and OSC proceedings, contempt cannot be decided on the moving and responding papers alone. The citee is entitled to a formal hearing as a matter of right and must be allowed to testify, to call and cross-examine witnesses, and to introduce evidence in defense of the charge. Code of Civil Procedure § 1217.

Contempt citees clearly have a due process right to be represented by an attorney they have retained for that purpose.  Additionally, where the potential penalty includes a jail sentence, an indigent citee has the due process right to court-appointed counsel at county expense.

The citee must be afforded the testimonial privileges of a criminally accused: He or she is entitled to exercise the privilege not to be called as a witness, and can decline to answer specific questions, claiming the privilege against self-incrimination. These privileges are not waived by filing an answer to the charging declaration.

As a general rule, the citee also has the same rights as a criminally accused to proof of a prima facie contempt case by competent evidence beyond a reasonable doubt. The contempt must be discharged if the charging party fails to carry this burden on each element of the prima facie case.

The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial for all “serious” criminal contempts such as when the contempt is punishable by more than six months’ imprisonment.

The right to a jury trial under the California constitution is broader: It extends to all criminal prosecutions above an “infraction.” Thus, there is a right to jury trial in criminal contempt proceedings that carry a maximum penalty comparable to a felony or misdemeanor (six months’ imprisonment plus $1,000 fine) regardless of what the Legislature has labeled the offense.

However, there is no right to jury trial where the court invokes its general summary contempt power under Code of Civil Procedure § 1209 and imposes only a maximum five-day sentence and/or $1,000 fine. Code of Civil Procedure § 1218(a). That punishment is not akin to a misdemeanor penalty and thus does not trigger the state constitutional jury trial provision.

If the court proceeds to trial on contempt charges without a jury, and the citee has not expressly waived the right to a jury, the maximum sentence that may be imposed is 180 days (six months). A longer sentence in violation of the jury trial right will not invalidate the contempt conviction or require retrial by jury; but the court must reduce the sentence to six months or less.

The elements or facts generally necessary to establish a prima facie contempt of a family law order are: (1) rendition of a valid order; (2) the citee’s knowledge of the order; and (3) the citee’s willful disobedience of the order.

A contempt adjudication cannot stand if the underlying order is invalid. The charging affidavit must identify the underlying order by date of entry and type. For purposes of sustaining a prima facie case, the court can presume validity unless the order is void on its face; the citee thus normally bears the burden of showing invalidity, either as an affirmative defense in the answer or by motion to discharge the contempt citation.

Part two of this blog post will discuss the remaining issues that will be decided at any contempt hearing.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Visit his website at http://www.legaldocspro.com

To view numerous sample documents for California litigation sold by the author click here:  http://www.scribd.com/legaldocspro/documents

If you would like to subscribe to his newsletter click on the following link: http://www.legaldocspro.net/newsletter.htm