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.
William 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.
