Violations of court orders relating to custody, visitation, child support, alimony, and other family law issues can result in a finding of contempt of court and even jail time for the offending party.
The following North Carolina cases illustrate these issues.
Baines v. Baines (2013)
In the case of Baines v. Baines, the North Carolina Court of Appeals held that a mother could be held in contempt for refusing to let her daughter have visitation with her ex-husband when she feared for her daughter’s safety.
Thomas and Kimberly Baines were married in 1994. They had one child, “Jessica” (a pseudonym), in 2003 and were divorced in 2005. In 2007 they entered into a consent order under which Kimberly was to have sole custody of Jessica and Thomas was entitled to visitation on alternate weekends and one weekday per week.
The consent order also provided that the parents would use a parenting coordinator to deal with disputes.
In August 2011, Thomas invited his brother Andy to live with him. Andy had a history of drug abuse, and also a history of criminal activities related to his drug addiction. He was on probation when he came to live with Thomas.
In September or October of 2011, Andy was arrested for violation of his probation but was released and returned to live with Thomas in November.
Kimberly knew of Andy’s drug problems when she was married to Thomas. She didn’t object to Andy living with Thomas when he first moved in with him in August. However, in December she contacted the parenting coordinator and expressed concerns about Andy. The parenting coordinator communicated these concerns to Thomas, but Thomas didn’t think that Andy’s presence in his home was a problem for his daughter.
Jessica was scheduled to visit with her father over the weekend of December 16-18. However, Kimberly refused to let her go and only allowed her to visit Thomas during the day on December 17 and 18.
In January 2012, Kimberly again prevented Jessica from visiting her father and informed him that she was “suspending” his visitation.
From December 2011 through January of 2012, Thomas lost 80 hours of visitation time with his daughter.
On January 9, Thomas filed a motion requesting that Kimberly show cause why she should not be held in contempt for violation of the consent order. At the same time, Kimberly sought to modify the consent order, alleging that Thomas had created a dangerous environment for Jessica by allowing Andy to live in his home.
At a hearing in the Durham County District Court, the judge found Kimberly in contempt, concluding that:
- Kimberly was able to comply with the consent order.
- Kimberly’s refusal to allow Jessica’s visits to her father, and her restrictions on Jessica’s visits, were a willful violation of the consent order.
- Kimberly was not entitled to a modification of the consent order.
The District Court also ordered Kimberly to pay Thomas’ attorney’s fees of $4,500.
Kimberly appealed. She argued that the District Court had made a mistake in finding her in contempt because her actions were not “willful” – she was only trying to protect her daughter from what she saw as a dangerous situation.
The Court of Appeals disagreed. Its decision noted that civil contempt punishes a “willful violation of a court order” and requires:
- An ability to comply with the court order
- A deliberate and intentional failure to do so
Willful is defined as:
“…disobedience ‘which imports knowledge and a stubborn resistance,’ and as ‘something more than an intention to do a thing. It implies doing the act purposely and deliberately, indicating a purpose to do it, without authority——careless whether [the contemnor] has the right or not——in violation of law…’”
The Court of Appeals noted that the Baines case was not the same as the Hancock case, in which the mother was found not in contempt for her alleged refusal to allow her son to visit his father.
In Hancock, the mother prepared and encouraged her son to visit his father during scheduled visitations. She told her son that he had to go with his father. In fact, she did “everything possible short of using physical force or a threat of punishment to make the child go,” but the child “simply refused” to cooperate.
In contrast, held the Court of Appeals, Kimberly had the ability to let Jessica visit her father but she chose not to.
Kimberly argued that even if she did violate the consent order she shouldn’t be held in contempt because she “did not really make a conscious choice to disobey” given her concern for her daughter’s safety.
The Court of Appeals found that argument without merit.
Kimberly also argued that she shouldn’t be held in contempt because she didn’t act in bad faith. Before the refused to comply with the consent order, she worked with the parenting coordinator to try to avoid what she saw as a danger to Jessica.
Again, the Court of Appeals disagreed.
Finally, Kimberly argued that the District Court had made a mistake in awarding attorney’s fees to Thomas. She said that the District Court failed to find that Thomas had acted in good faith in bringing the motion and that he had enough money to pay his own legal expenses.
Here, the Court of Appeals agreed with Kimberly. It noted that North Carolina law provides that in a custody action a trial court has discretion to award attorney’s fees to a party that is:
- Acting in good faith
- Has insufficient means to defray the expenses of the suit
The District Court had concluded that Thomas acted in good faith, and the Court of Appeals agreed that there was evidence to support that conclusion.
However, the Court of Appeals found that there was no evidence to support the District Court’s finding that Thomas couldn’t afford to pay his lawyer bills, despite his lawyer’s arguments to that effect. An affidavit (sworn statement) by Thomas stating his income and expenses wasn’t submitted as an exhibit during the trial, so the Court of Appeals couldn’t take it into consideration on appeal.
Watson v. Watson (2007)
In the Watson case, the former wife was held in contempt for refusing to assume responsibility for credit card debt and sign tax forms, in violation of an equitable distribution consent order.
Robert Lemoyne Watson filed suit against his wife, Gayle Powell Watson, in October of 2003, seeking equitable distribution of the couple’s marital property. The parties entered into a consent order, which was filed in 2005. The order included the following provisions:
- Gayle was to deliver to Robert’s CPA documents needed for the filing of tax returns for 2001 to 2003. Gayle was also to sign the returns.
- Gayle was to assume responsibility for certain financial obligations.
- Robert and Gayle were to each transfer to their own names certain credit card and other debt.
In July of 2005, Robert filed a motion for contempt against Gayle. The trial court eventually found Gayle in contempt of court and ordered her sent her to the Alamance County Jail until she complied with the terms of the consent order.
The court ruled that Gayle could avoid jail time if she:
- Removed Robert from her debts
- Sent the consent decree to major credit reporting agencies and acknowledged her responsibility for her own debts
- Delivered to Robert’s CPA the tax documents for 2002 and 2003
- Appeared in court on October 3, 2005 with her separate tax returns
- Appeared before the court on October 17, 2005 with completed 2003 and 2003 tax returns prepared by Robert’s CPA
Gayle repeatedly failed to appear in court and comply with the other requirements. She also fired her lawyer. The court ordered that if she failed to appear on November 28 she would be arrested.
Gayle was arrested and jailed on November 28 and released on December 12.
After further disputes, Gayle was ordered arrested again in June, 2006. The court told her that she could avoid jail by signing tax returns, paying Robert’s legal fees, paying expert witness fees to Robert’s accountant, and paying two credit cards off in full.
Gayle appealed from this order. Among other things, she argued that the trial court had made an error in not telling her whether the contempt proceedings against her were civil or criminal.
The Court of Appeals held that it was irrelevant whether the trial court said that proceedings were criminal or civil. The parties agreed they were, in fact, civil.
The Court of Appeals noted that contempt of court can be either civil or criminal, based on the purpose for which the court’s contempt power is exercised:
- Criminal contempt allows a court to preserve its authority and punish disobedience of its orders. Criminal contempt is a crime, and so the defendant’s constitutional rights must be protected accordingly.
- When a court uses the contempt proceeding to compel obedience to its order, and a defendant can avoid a contempt sentence by complying, then the contempt is civil.
Gayle also argued that her obligation to “assume financial responsibility” for the credit cards did not require actually paying them off. The Court of Appeals disagreed.
Gayle challenged the trial court’s finding that she had the ability to meet her credit card obligations. The trial court had found that she had more than $580,000 in real estate equity in her name alone, compared to credit card debt of about $32,000. The Court of Appeals agreed that this meant that she had the ability to pay her debts.
The Court of Appeals also found that Gayle’s refusal to sign the tax returns was “deliberate, and part of a series of recalcitrant acts designed to frustrate the filing of amended joint tax returns required by the express terms of the consent order.”
The Court of Appeals further found that it was proper for Gayle to be ordered to pay Robert’s attorney’s fees, but not to pay for his accountant’s expert witness fees.
It’s not clear from the record whether Gayle finally complied with the consent order, or whether she spent more time in jail.
Using the Contempt Process to Enforce Family Law Orders
As the cases above make clear, the contempt process is the enforcement mechanism courts use to make people comply with court orders – or suffer the consequences.
Of course, there’s a limit to what a civil court can “make” anyone do. But a court can make not complying with a consent decree very unpleasant, including by sending the person in contempt to the local jail.
Again, the requirements for a party being found in contempt are:
- The party was ordered by the court to do something
- The party failed to do that something
- The party was capable of doing that something
A contempt action is not available unless a party was specifically told to do (or not to do) something. It cannot be brought simply to punish bad behavior. For example, the court may not hold a parent in contempt for failing to provide the other parent with a new address or for constantly paging the other parent, if these requirements were not mentioned in a court order.
A finding of contempt can apply to a range of family law-related orders, including a consent order, a final judgment and a decree, and settlement agreement — but only if the agreement incorporated into a final judgment and decree.
A separation agreement that is not incorporated into a final judgment and decree is not enforceable via a contempt action. It’s just a contract, like any other contract, and the parties can enforce it in the same ways that other contracts are enforced.
If a separation agreement is part of a court order, the court can hold a party in contempt (and potentially send him or her to jail) even to enforce provisions in the agreement that the court could not have ordered on its own.
For example, a court normally can’t order a parent to support a child past the age of majority (18) or pay for a child’s college education. However, if the parents have agreed that one party will pay for college, and that agreement has become part of a decree, if the obligated party fails to pay for college the agreement can be enforced with a contempt order.
Contempt proceedings are most commonly brought when a party fails to comply with child support and visitation orders, but as seen above in the Watson case they can also be brought to enforce equitable distribution orders.
Whether a party is capable of doing something is almost always the most controversial issue. Parties often plead poverty when ordered to make a payment, and the other party can contest this by introducing evidence of what the “poor” party was able to afford, such as vacations, new cars, new clothes, expensive dinners, jewelry for a new spouse, renovations, and other luxuries.
Disobedience of a court order is not grounds for contempt when someone other than the party bound by the order is responsible for the disobedience. For example, a father may not be held in contempt if his mother is the one refusing to return the father’s child to the child’s mother. As in the Hancock case cited in the Baines case, a parent who has used all reasonable means to force a child to comply with a visitation order is not liable for contempt if the child simply refuses to obey.
Among other penalties for contempt, the court can order a party to pay the other side’s attorney’s fees, as in the Watson case.
Civil and Criminal Contempt
As seen in the Watson case, the contempt that results from violation of a court order comes in two types: civil and criminal.
A civil contempt action seeks to motivate a party to comply with the relevant court order. Civil contempt cases must provide for a way for the offending party to purge the offense, such as by making overdue payments. Once the party complies, then he or she is no longer subject to the penalties for contempt (such as incarceration).
The order to purge the offense must be specific, such as an order to pay a specific sum of money by a specific date. An order finding a mother in contempt and ordering her not to punish her children “in any manner that is stressful, abusive, or detrimental” was found to be too ambiguous for a court order.
Incarceration for civil contempt is limited to successive 90-day periods, not to exceed a year in total for the same offense.
The North Carolina Supreme Court has ruled that, due to due process concerns, a trial court must consider appointing public counsel for an indigent defendant even if the contempt proceeding is civil rather than criminal. The trial court must determine how likely incarceration is and ask the defendant about his or her wish for a lawyer and ability to pay for one.
Courts must always act in the best interests of a child, and are reluctant to incarcerate custodial parents. A North Carolina court may not incarcerate the custodial parent without a finding that “the drastic action of incarceration of a [custodial] parent is reasonably necessary for the promotion and protection of the best interest and welfare of the child.”
Criminal contempt, on the other hand, is used to punish multiple or repeated violations of court orders. The usual constitutional protections for those accused of a crime apply. Penalties include jail time, fines, and the payment of the other party’s attorney’s fees. Offending parties are also required to comply with the original order, and risk losing custody or visitation rights.
Contempt Orders and Modifications
As in the Baines case, a party against whom a contempt order is sought will often seek modification of the order that he or she allegedly violated. Or, a party who is not complying with an order may seek modification before the other party brings a motion for contempt.
For example, if a parent paying child support has lost his or her job, he or she may apply for a modification reducing the amount of child support due. Or the amount of support may be modified because the child’s needs change. The child may switch from public to private school or vice-versa. The child may need expensive private tutoring to cope with a learning disability or prepare for college entrance exams. The child may have new long-term or short-term medical expenses.
Parents may also seek modifications with respect to custody. For example, the parent with primary custody may wish to move with the child out of state for a new job, a new spouse, or to be closer to family members.
As seen in the Baines case, a parent may seek custody modifications if he or she is concerned about a child’s welfare, or thinks the other parent is unfit. If a parent thinks visitation is inappropriate under the circumstances, that parent should seek to modify the order rather than violate it and risk being found in contempt.
For example, one North Carolina court agreed that because a father smelled of alcohol and had let his apartment become unsanitary, the court should limit his visitation rights. This did not, however, justify the mother ignoring the visitation order for more than a year, thus creating her own violation of court order.
Parties may also seek to modify an alimony order. This usually happens when the spouse owing alimony loses a job or otherwise has changed financial circumstances.
In any of these cases, once the order has been modified, the other spouse can no longer bring a motion for contempt to enforce the old order.
As difficult as it may be, it’s usually a good idea to talk with a former spouse and find out what the problem is before bringing a contempt action. Litigation is expensive, stressful, and time-consuming, and the other spouse’s non-compliance may be the result of a misunderstanding or forgetfulness. It may make more sense for the parties to agree on modification without the need for a court order.
