The rule of law philosophy assumes that good people will follow it. Unfortunately, people are not always on their best behavior outside the courtroom, which really matters in family law. One party’s failure to follow the judge’s ruling could mean the other won’t be able to make ends meet or spend time with their child. Here is what you need to know about contempt of court in Colorado family law cases.
In this Guide:
- What is Contempt of Court?
- Remedial and Punitive Sanctions
- Alternatives to Filing for a Citation of Contempt
- Defenses Against Contempt of Court
What is Contempt of Court?
Technically, contempt of court has many facets. Colorado’s Rules of Civil Procedure, Rule 107 (a) (1) defines it as:
“Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.”
Put simply, contempt is the intentional disobedience of a court order. It can be:
- direct contempt — disruptive courtroom behavior witnessed by the judge, or
- indirect contempt — a violation of a court order occurring outside the presence of the court.
In the context of family law cases, a party will usually file a Motion for Citation for Contempt of Court when the other party fails to comply with the orders the court issued.
What Can Lead to a Contempt of Court Charge?
Violating an existing court order can result in contempt of court. During divorce proceedings, some court orders take effect automatically, such as the mandatory temporary injunction to maintain status quo. Violation of such an order will likely be contempt of court. Below are more examples of contempt of court in a family law context:
Contempt of Court for Child or Spousal Support
The court ordered the other party to pay you child support and/or spousal support. However, the other party either has not made payments, does not pay the full amount, or continually pays so late that you incur penalties and late fees on your bills.
During divorce proceedings, the other party violates the temporary injunction by financially sabotaging you. Examples of financial misconduct can include:
- withholding your property from you,
- not paying spousal support or child support,
- paying bills late or not at all,
- controlling all of the marital money and assets,
- taking away your vehicle, and
- other similar behaviors.
Noncompliance of a Separation Agreement
The other party has breached the terms of the separation agreement and is withholding money or property from you after the divorce.
Noncompliance of a Parenting Plan
The other party is not abiding by the ordered parenting time and/ or decision making agreement. This includes:
- refusal to allow you visitation,
- failure to return the child at the end of a visit,
- changing the child’s school without notice,
- failure to take care of the child’s medical needs, or
- making major decisions concerning the child without informing you.
Violation of Protective Order
The other party flouts an order of protection by:
- contacting you on social media (Facebook, Twitter, etc)
- emailing, texting, and/or calling you
- leaving messages at your work, on your car, or with a friend or relative
- asking another person to contact or harass you on their behalf
Note: Contempt is an “after the fact” remedy. In other words, the court will not issue a contempt charge until an actual violation occurs. You cannot file a Motion for Citation just because the other party says they won’t comply.
Remedial and Punitive Sanctions
The court may order two types of sanctions in a contempt proceeding. The first is …
Remedial sanctions are meant to enforce the original court order the offender violated. The sanctions order states how the remedies can be satisfied, and contempt charges can be cleared. The penalties for not clearing the charge may include:
- fines and/or jail time until the performance of the original judicial demand,
- court costs
- attorney’s fees
For example: A father is in contempt of court after failing to pay child support for four months. The court learns he had the ability to pay, as his financial situation never changed. The judge orders the father to pay half of the overdue support within 30 days. Afterward, the father will pay an extra 25 percent each month until the entire balance is current. He must also pay his former spouse’s attorney fees.
If the father meets all these requirements, he will have cleared the contempt charge. If he doesn’t, he faces fines and jail time.
Now, if the father rips up the judge’s new orders and mails the torn scraps of document to the mother, he is asking for …
Punitive contempt of court sanctions intend to punish the offending party for egregiously willful violations. Here, the defendant does not just fail to comply, but he behaves in such a way that offends the authority and dignity of the court that issued the order.
Punitive sanctions generally amount to:
- up to six months in jail, and
- other punitive measures the court deems appropriate.
No Way Around Punitive Sanctions
Once the court issues punitive sanctions, the offending party must serve the entire punishment. Punitive contempt cannot be purged by taking remedial action. — C.R.C.P. 107(d)(2), 107(d)(1), and 107(e).
For example: The father who ripped up the judge’s remedial sanctions order has gone too far. He cannot avoid punitive sanctions by now deciding he wants to pay all of the overdue child support. A meek apology to the court won’t cut it either. If the judge sentences the father to 30 days in jail, then he will serve 30 days in jail.
Burden of Proof in a Contempt Hearing
Before urging your lawyer to file a motion for contempt, make certain that your accusation will hold up in court. Ask yourself the following questions:
- Is the court order still in effect?
- Does the other party know that the order exists?
- Are you in compliance with the court order yourself?
- If it’s your word against theirs, do you have proof of the violation?
- Was the violation intentional, or could there be a reasonable explanation for it?
If you seek remedial sanctions, you must show the court “by a preponderance of the evidence” that the other party intentionally failed to comply with a court order.
If you want punitive sanctions, you must show “beyond a reasonable doubt” that the other party willfully violated the court’s order.
Remedial and Punitive Sanctions are Not Interchangeable
A court may impose remedial sanctions backed by certain penalties if the offending party doesn’t comply. Or it can impose punitive sanctions to punish the offender for thumbing their nose at the court’s authority. The court cannot impose both sanctions for the same offense.
One case from the 1980s drew a sharp distinction between remedial and punitive contempt of court sanctions. Let’s take a look.
McVay v. Johnson (1986)
John McVay had a court-ordered obligation to pay $175 per month in child support to Melanie Johnson, the custodial mother of his child. When his employer laid him off, McVay sought but was denied modification of his child support obligations, as the court found he was still able to pursue other work.
Nine months later, at the mother’s request, a judge issued a contempt of court citation against McVay for failing to pay child support.
Punitive Sanctions Imposed
At the contempt hearing, the trial court learned that McVay currently had no ability to pay child support. However, the court also discovered that McVay had stopped paying the support even when he still could have paid. For that, the court imposed a punitive sanction of 10 days in jail, but it then suspended the punishment indefinitely, providing that McVay:
- pay back $60 per month in overdue child support, and
- reimburse $20 per month in attorney’s fees.
The court also noted that arrearages on the overdue support would continue to accumulate.
McVay appealed the ruling.
Contempt Citation Reversed
The Appellate Court came down with an interesting decision, overturning the punitive sanctions outright. It said that the trial court, by suspending the 10-day imprisonment order on condition of making back payments plus attorney’s fees, had issued remedial, not punitive sanctions.
It didn’t stop there. The appeals court also ruled that the remedial sanctions against McVay were unfair, since the hearing had found that the father was presently unable to pay child support. Therefore, the appellate court negated all contempt of court charges against McVay, saying:
“Here, although the trial court purportedly issued a punitive contempt order “to vindicate the dignity of the court,” the punishment was conditioned on the husband’s future performance of a duty. Thus, the order was remedial rather than punitive … However, since the trial court already had found that husband did not have the present ability to comply with the support order, it had no authority to issue a remedial contempt order.”
— McVay v. Johnson, 727 P.2d 416, 418 (Colo. App. 1986)
Alternatives to Filing for a Citation of Contempt
You can be frustrated with someone for not obeying the court’s orders. However, that doesn’t mean you necessarily want to haul them into court. So, what can you do if you want the other party to abide by court orders, but you want to try other options before taking them to court?
If you believe it is possible and safe to do so, you can try one of the following:
- Request in writing that the other person comply with the order. Be professional, businesslike and polite, and write only about the specific issue at hand.
- Write a demand letter or have an attorney draft a demand letter on your behalf. The letter should explain the violation, clearly request compliance, and be sent by regular or certified mail. Keep a copy for your records.
- Schedule mediation, especially if it is agreed to in your parenting plan or ordered by the court.
- If your contempt involves payment of child support, you can seek payments through the Child Support Registry in your county.
Technical and Viable Contempt
A contempt of court citation is hardly worth pursuing when support payments are occasionally two or three days late. The same goes for parenting time. If one parent is sometimes a few minutes late picking up or returning a child, that’s technically a minor violation, but it hardly rises to viable contempt.
It costs time and money to file a citation for contempt. Also, doing so over minor violations will irritate the court.
However, when support payments are routinely more than a week late, or when the other parent keeps showing up more than an hour late to visitation swaps, that’s viable contempt and probably should be pursued.
Defenses Against Contempt of Court
If you have been served with a motion for contempt, you might have a valid defense.
First, you must determine two things:
- If a valid court order was issued by a court that had proper jurisdiction to issue the order, and
- that you knew about the order.
Even if those are true, you might still have one of the following defenses:
- improper service of the motion
- the court order has expired
- you didn’t violate the order
- the original order is unclear or vague, so the alleged violation is not clear, and you have tried your best to comply with the vague order
- you’re unable to comply with the order for reasons outside your control
- the other party has previously agreed to give you more time to comply or has allowed you not to comply and you have evidence to prove this agreement
Get Yourself an Experienced Family Law Attorney
Courts take it seriously when one of the parties in a divorce does not follow through with the judge’s orders. No matter which side of a contempt of court action you’re on, it’s important to seek legal advice. Our Family Law Team is ready to both file contempt actions on our client’s behalf or defend you if you have been accused of contempt of court. Simply call 303-688-0944 to begin your Case Assessment.