As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Advanced Family Law” and I had opportunity to speak on three topics in particular: Effectively Arguing Contempt Issues, Advanced Child and Spousal Support Issues, and Ethics. I was joined by James Rocco, Esquire, Kathleen Piperno, Esquire, and Jan C. Grossman, Esquire.
Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.
Copied below are the materials I wrote for the section entitled “Effectively Arguing Contempt Issues.”
Contempt is generally defined as a willful defiance of a court order or a willful failure to comply with the terms of a court order. In a strictly technical sense, a domestic and/or family matter does not substantially differ from that of any other civil matter when it comes to contempt. The court enters an order which lays out certain terms or instructions or directives to the parties involved in the case, and it is the responsibility of those parties to do their best to comply with the terms or instructions or directives in that order. Failure to comply with the terms or instructions or directives in that order is to be, at least in a strictly technical sense, in contempt of that order.
Now, family court, perhaps more than any other court, is one which must be rather flexible to account for the vagaries of human behavior and the unpredictability of everyday life. Therefore, while some orders may be strictly construed and enforced, others may allow for some flexibility in both practical application and interpretation. So, when pursuing a contempt matter, it is best to do so judiciously and with discernment.
It is important to note that courts typically loathe to have to hear contempt actions and would much rather the parties spend the time working these issues out on their own before filing. Therefore, before filing for contempt, please be sure to explore the options with the other party. Sometimes a simple telephone call or email to open the lines of communication can go a long way to bring matters to a resolution without resorting to a contempt action. Usually, a simple way to do this, at least at first, is to send a letter to the opposing party pointing out his obligation under the order and his failure to meet it, and requesting compliance within a reasonable amount of time. Courts want to see parties make a good faith effort to resolve their differences; therefore, filing for contempt should only come after other reasonable attempts at resolution have failed. As a corollary, and this is especially true in custody matters (described below), courts tend not to take picayune matters seriously. If someone is violative of a court order in a minor way, especially one that resulted in no actual harm to the other party, a court is unlikely to take a contempt matter filed because of it seriously. Sometimes a contempt matter surrounds a dispute over the interpretation of an order. Unfortunately, even the most vigilant attorneys, judges, and jurists may write something that could be open to interpretation or does not account for every variable. A disagreement over an interpretation is certainly something that could be resolved by a court, but if that disagreement is in good faith, it is unlikely to rise to the level of contempt. It should be remembered that, in general, contempt actions are supposed to be corrective and not punitive; they are a safety valve to help a party receive what he is entitled to receive under a court order as opposed to a way to punish a recalcitrant person.
Contempt is approached in slightly different ways in each of the three primary areas of family law, and they are individually described below.
Contempt in divorce matters generally crop up in two potentially contentious areas: discovery and the performance of a property division order.
Discovery in divorce is not much different than that of any other civil matter. As seems unfortunately all too typical in all types of litigation, parties who receive discovery requests frequently do not respond to them in a timely fashion. Failing to respond to discovery in a timely fashion can lead to motions to compel those responses. A court granting a motion to compel the discovery responses typically sets out a hard deadline by which the responses must be furnished to the requesting party. If that hard deadline is missed by the party who is to produce the discovery responses, the opposing party may proceed with a contempt action for the failure to abide by the order of the court requiring discovery to be provided by a specific date.
Now, as stated above, courts generally do not hold parties in contempt of their orders unless a party demonstrated a willful defiance of a court order. So, if facing a contempt motion for failing to comply with a discovery order, viable defenses could, depending on the case, include, but are not limited to, things like:
- the items requested are impossible to produce (e.g.: they are destroyed or not in a party’s possession or have already been provided, etc);
- the items requested are too voluminous to produce in the time frame required;
- a good faith effort has been made to comply, but circumstances have resulted in untimely responses.
The other primary source of contempt litigation in the context of a divorce matter is the performance of a property division order. A property division order can be the result of an agreement between the parties (e.g.: a Property Settlement Agreement) or by an order of a court after a hearing. Regardless of which it is, they both effectuate the same purpose, which is to lay out how marital property is to be dealt with after the dissolution of a marriage.
A typical property division order includes provisions that identify which assets to convey, and when, from one party to the other. As one may expect, for one reason or another, parties are not always completely compliant with the terms of a property division order. As above, once again, a finding of contempt must include some sort of willful defiance of the order. So, as above, defenses like impossibility or good faith may be viable.
Contempt matters involving agreements between the parties generally also involve a provision for the payment of the aggrieved party’s attorney’s fees by the party found in contempt. As a result, it is important to avoid contempt and, if not avoided, keep the litigation to a minimum in order to ensure attorney’s fees do not accumulate.
Much of what has been said above applies to custody matters. Contempt in custody matters distinguish themselves from the above as they also tend to carry a high degree of emotionality with them, are very fact dependent, and, if not used properly, descend into using the court as a referee or a life coach as opposed to a tribunal interpreting and applying the law. Unlike divorce or support or most other areas of the law, the object of a custody order is not the parties, but a third party, namely a child (or children), and that child’s best interest is paramount. This “best interests” standard potentially opens up times where a technical contempt is justified.
As one may expect, custody orders, among other things, lay out the times and places when a party may have custody of his child(ren), and how and when that/those child(ren) are to be transferred to the other parent. The decision to withhold a child from the other parent, in contravention of the custody order, is one which is fraught with emotion, and the legitimacy of that decision is entirely dependent on factual circumstances.
Uncontrolled emotionality can sometimes lead to conduct that is clearly contempt of a custody order. For example, two parents could get into an argument and, out of spite, the father then decides to withhold the child from the mother in violation of the custody order. At other times, that emotionality can be a powerful source of strength to take the necessary action to protect a child. For example, a father is using drugs in his home when his child is to be dropped off with him by the mother. Considering the circumstances, the mother sees his drug use and elects not to provide the child to the father. Both of these are technically contempt of an order as they both violate its terms, however a deeper investigation of the facts, and keeping the “best interests” standard in view, the second example above is justifiable and would probably not be contempt of the court order.
As one may expect, “best interests of the child” is a nebulous term-of-art and, therefore, interpreted all manner of ways by parents. Before withholding a child due to “best interests,” it is important to ensure that the situation one is emotionally responding to is, actually, a “best interests” situation; clearly this is extremely fact intensive. Watching a rated “R” movie would likely not warrant withholding a child as opposed to something much more serious like abuse, drug use, and/or neglect.
The typical contempt action in a custody matter surrounds compliance with the days and times a child is to be transferred between the parties. As mentioned above, courts are loathe to get involved in the nitty gritty of someone’s life. As a result, a technical contempt (i.e.: imprecision in compliance with the order) will likely not result in a finding of contempt, unless harm can be shown. For example, if the child is to be dropped off at 8:00pm on Sunday night at father’s house by mother, but mother does not do so until 8:10pm, it is unlikely for this to result in a successful contempt action even if it is a technical violation of the order. While this may seem ridiculous to the outside observer, nearly any custody attorney can vouch for the fact that it is not uncommon for a parent to expect such hyper-precise compliance with a custody order by the other, and finds that lack of compliance to be of grave significance. The emotionality so often found in custody cases tends to distort a party’s perception of how such minor violations are viewed. This is not to say that violating a custody order will never result in a finding of contempt. For example, being significantly late, especially on habitual basis, will likely result in a finding for contempt. Again, as mentioned above, these matters are highly fact dependent.
Custody also carries with it the vagaries of daily life that are entirely unpredictable. All manner of things can interrupt compliance with a custody order that would not amount to contempt. For example, failing to drop off a child at the scheduled time due to inclement weather, a traffic jam, sickness, accident, an event running long, or the like would probably not be contempt. In fact, I think it can be said that losing track of time once or twice and being late would probably not be contempt either. A custody arrangement is something that is embedded and intertwined with one’s life and schedule and it is important to be flexible. Filing for contempt on a regular basis, or over minor issues, makes the filer look petty, badgering, and/or pedantic, and sometimes causes judges not to be sympathetic when a case of actual contempt arises.
Finally, some jurisdictions have such significant case backlog that a contempt action could lose its sting. For example, if one party breaks a custody order for a few weeks straight in the month of May, the impact and significance of that violation may easily still be felt at a hearing on the matter in July. Conversely, causing someone to miss some custody time in May, which is technically contempt of the order, seems distant and “yesterday’s news” when the hearing on the matter is not heard until November. The practical issue of a court’s scheduling backlog should be considered when deciding whether to file for contempt.
So, when considering filing for contempt in a custody matter, it is important to do so with discretion and discernment, which accounts for one’s emotionality and the specific factual situation in which the case is found.
Once again, as above, much of what has been said also applies to support matters. Of the different types of family matters, support tends to be the most-straight forward. A party (“obligor”) has an obligation to remit a certain amount of funds to the other party (“obligee”) at clearly laid out intervals (typically monthly). Failure to meet the aforesaid obligation, in full and in a timely fashion, is to be in contempt of court.
Most support cases in Pennsylvania are enforced through a garnishment of the obligor’s paycheck. As the support payments are, therefore, usually involuntary, contempt in a support context is not nearly as common as other areas.
Contempt in the context of support are typically in matters where someone changes employment and does not inform the Court (and, thereby, undermining the garnishment order), where someone has to personally make the payments, and/or someone fails to comply with health insurance coverage requirements.
Contempt in a support matter carries with it two unique aspects one ought to keep in mind when considering pursuing a support action. The first is a consideration of the obligor’s ability to perform the support order. For one reason or another, the parties in a support case are not always as vigilant as they could be in filing for the modification of a support order. So, for example, an obligor who loses his job (and neglects to request a modification of his support obligation downward) may not, due to circumstances beyond his control, be able to satisfy his support obligation. This sort of situation would unlikely, at least initially, lead to a finding of contempt as long as the obligor acts in good faith and makes reasonable efforts to pay child support. The second consideration is the practical effect a finding of contempt may have on the obligor’s earning ability. There are times where a judge will find the contempt of the support order to be so egregious that the obligor is penalized with incarceration. While in the moment achieving some measure of justice may feel gratifying for an obligee, it is quickly realized that an obligor, in a typical case, will not be able to pay any support while incarcerated, and his ability to do so once released is diminished. It is important to factor in the effect of incarceration on support before pursuing a contempt action in support.
There is a wide range of possible consequences for someone found in contempt in family court. The wide range is due to the fact that some violations of an order are minor, while others are more significant, and some are habitual. The more significant the violation, and the more habitual it is, the greater the penalty will be. “Habitual violations” means more than just doing the same thing repeatedly over a course of time (e.g.: nearly always being late for Sunday night custody drop off), it also can mean repeatedly violating a court’s specific directive. For example, someone may receive a mild penalty if found in contempt of a custody order for being late on a Friday night. If, two months later, the parties are back in court again on the same issue, the penalty will likely be more severe.
Perhaps the mildest penalty will be a specific directive by a court. So, for example, a party violating a divorce order by failing to remit a settlement check may be found in contempt and directed to furnish it to the other party on a date certain at pain of more severe sanctions upon further violations. The Court also may award attorney’s fees to the party who filed the contempt action to be paid by the party who violated the order. Other more severe penalties, including incarceration, are possible depending on the situation. In custody cases, the court may award additional custody time to a parent who was deprived of his time under the order due to the other party’s violation of the custody order. Of course, if the parties informally agree to make up time before the contempt hearing, then the impact of the contempt action is greatly diminished.
- Cases, Rules, and Statutes to consider:
- R.C.P. 1910.20 through Pa.R.C.P. 1910.25-6;
- R.C.P. 1915.12;
- 23 Pa.C.S.A. §3703;
- 23 Pa.C.S.A. §4344;
- 23 Pa.C.S.A. §4345;
- 42 Pa.C.S.A. §4132;
- 42 Pa.C.S.A. §4133;
- Rhoades v. Pryce, 874 A.2d 148 (Pa.Super.2005);
- Chadwick v. Janecka, C.A.3 (Pa.2002), 312 F.3d 597;
- Sonder v. Sonder, 378 Pa.Super. 474 (Super.1988);
- Schoffstall v. Schoffstall, 364 Pa.Super. 141 (Super.1987);
- Durant v. Durant, 339 Pa.Super. 488 (Super.1985).