Now there is a phrase that pretty much sums up most separations and divorces. Did you know that within family law, and any area of law for that matter, that contempt plays an important, but sometimes confusing role? Let's chat about contempt as it applies to the law and we'll leave the Oxford English Dictionary definition alone.
There are two types of contempt as it applies to the law, civil and criminal Contempt. Contempt of court refers to when a party disrupts a court proceeding or disobeys/fails to comply with a court order. Contempt actions are brought by filing a Motion for Order to Show Cause and Motion for Contempt action to seek the court to order the offending party to appear in court to explain themselves.
Seems like a little overkill right? The reason for this is that the court is the one with the authority necessary to get the alleged offender back in court, not the opposing party.
Let's get to the nuts and bolts of this contempt thing.
North Carolina General Statute 5A-11 gives ten grounds for criminal contempt which can be found here. The main portions that pertain to family law are numbers one through four. Basically, if a party disrupts a court proceeding, disobeys a Judge or court staff during court, disobeys a court order or judgment then there is going to be a potential penalty, which I'll get to later.
A prime example of inappropriate courtroom behavior can be found in the movie My Cousin Vinne. Vinnie, the New York resident illegally practicing law in Alabama, is told by the judge that the next words out of his mouth should be his client's plea of 'guilty' or 'not guilty'. Vinnie doesn't listen and says something other than 'guilty' or 'not guilty' and the judge charges him with contempt on the spot. That is one way to get a criminal contempt charge. The other popular one in family law courts is to not comply with a judgment or court order. Simply put, if you are ordered by the court to do something, you better do it or face a criminal contempt charge.
What's the penalty for criminal contempt anyways? NCGS 5A-12 governs the penalties associated with criminal contempt and basically allows the court to order a censure, imprisonment up to 30 days, a fine up to $500 or any combination of the three. There are exceptions and they can be found here.
Civil Contempt is governed by NCGS 5A-21 and has been the talk of contempt town the last couple years. Reason being is that most attorneys (and some judges) believed that the court had the power to levy a fine on the offending party. This confusion started from the North Carolina Appellate case Tyll v. Berry (2014). The court ruled that Berry had violated the court's 50(c) no-contact order by sending an email to the Tylls and ordered Berry to pay $2500 as a fine. Berry was jailed until he paid or "purged" the owed amount. Roughly a year later, the North Carolina General Assembly made a change to NCGS 5A-21 and specifically stated that "[a] person who is found in civil contempt under this Article is not subject to the imposition of a fine.”
So what's the penalty then for civil contempt? First off, the offense must be a continuing violation of a court order. Think 'continuously don't pay child support or alimony'. For a civil contempt action to be valid the order has to remain in force, the purpose of the order may still be served by compliance with the order; the noncompliance by the person to whom the order is directed is willful; and the person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order (from NCGS 5A-21). The last two, "noncompliance by the person to whom the order is directed is willful; and the person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order" are typically the elements that are mostly in dispute.
If the court determines that the action of the offending party meets the elements set forth in NCGS 5A-21 then the penalty will be incarceration until the order is complied with. The incarceration cannot extend past 90 days. So if you haven't paid alimony or child support, you can be locked up until you start making payments.
And you thought only attorneys were worthy of your contempt.