What is Contempt?
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Contempt proceedings are a way to address violations of a court order or misbehavior during a legal proceeding. Lawyers refer to a contempt case as a “remedy,” meaning it is a way to remedy wrongful conduct. The wrongful conduct is described as contemptuous conduct, or an act of contempt. Both acts and omissions (failure to act) can be the basis for a contempt prosecution.
Through a combination of two categorizations, there are four types of contempt proceedings:
(1) direct criminal contempt; (2) indirect criminal contempt, (3) direct civil contempt, and(4) indirect civil contempt.
The words “direct” and “indirect” indicate whether the wrongful conduct took place in a judge’s immediate presence. If the wrongful conduct took place in a presiding judge’s presence, the contemnor (the person accused of a contemptuous act) committed a direct contempt of court. If the wrongful conduct took place outside of the presiding judge’s presence, the contemnor committed an indirect contempt of court.
The categorization of civil versus criminal contempt causes much confusion, even for lawyers. When some see the words “civil” versus “criminal”, they jump to the conclusion that one theory allows for jail and the other does not. If an alleged contemnor is found by the court under the appropriate standard to have committed a contemptuous act, the contemnor can be sentenced to jail under a civil contempt theory or criminal contempt theory. Civil contempt does not equal “no jail”. The purpose of a jail sentence, and the length of the jail sentence highlight the difference between civil contempt and criminal contempt remedies.
The sentence for a wrongful act or omission under a criminal contempt theory is up to 10 days in jail, a $50 fine, court costs, and attorneys fees for the prosecuting attorney, which is usually the other litigant’s lawyer. Even if the contemnor stopped doing the contemptuous act or paid restitution for a contemptuous act, for instance, the contemnor may still be prosecuted and punished with jail, in the discretion of the judge. Stopping or fixing the wrongful conduct is no defense to criminal contempt. In general, criminal contempt exists to vindicate the authority of the judge or the court, or the sanctity of the proceedings.
Civil contempt has a different purpose – to give relief to a litigant. In a civil contempt proceeding, the contemnor holds the keys to the jail cell. A contempt jail sentence is indefinite. As soon as the contemnor starts doing what the court ordered him or her to do, the jail confinement ends. If the alleged contemnor complies with the order after the contempt proceeding is filed, but before the contempt hearing, there will be no jail at all. But, the contemnor may still be liable for payment of attorneys fees and court costs, if he or she failed to comply with the order until after the contempt proceeding was filed.
In summary, criminal contempt is used as a form of punishment for past non-compliance with a court order. Civil contempt is used as a way to compel court-ordered conduct, or stop conduct that the court forbade.
EXAMPLES OF CONTEMPTUOUS CONDUCT
(1) Direct criminal contempt
During a trial, while a witness is testifying, someone in the court stands up and yells, “That is baloney!” (or something stronger). The judge bangs the gavel and demands the yeller give his name.
“My name is John Smith”.
Judge – “Mr. Smith, your outburst was an affront to this court and interfered with the administration of justice. I find you guilty of direct criminal contempt and I sentence you to one day in jail and a $50 fine. Bailiff, please escort Mr. Smith to the jail for processing.”
In this situation, the contemnor will not necessarily be a person involved in a case the judge is hearing. Someone in the audience could be found in contempt, if he or she engages in misbehavior in the judge’s presence. A judge may summarily sentence a contemptuous act committed in his or her presence, meaning there does not have to be a trial before punishment is issued. The purpose of this direct contempt remedy is to preserve the dignity of the court and its proceedings, and punish anyone who would assault that dignity and interfere with the administration of justice.
(2) Indirect criminal contempt
The Permanent Parenting Plan order of two divorced parents states that father gets physical custody of the children for the upcoming Spring Break. Father has plans to take the children to Ohio to see his parents and other extended family. Mother’s friend invites mother to bring the children to stay with her at mother’s friend’s condo in St. Petersburg. Father denies mother permission to take the children. Mother takes them with her anyway, because she believes the children will have more fun at the beach, especially because they are friends with mother’s friend’s children.
Father pursues a criminal contempt case against mother, for one count of criminal contempt. Father proves beyond a reasonable doubt that mother failed to bring the children to the exchange point at the appropriate time, and instead took the children to St. Petersburg. The court sentences mother to two days jail, a $50 fine, court costs, and payment of $1500 attorneys fees.
The failure of mother to abide by the parent plan, which provided father with physical custody during Spring Break, was a contemptuous act. Her actions took place outside of the presence of the court, so the wrongful conduct is classified as indirect contempt.
Note that there would be no way to prosecute this wrongful conduct as a civil contempt. Mother’s violation of the parent plan order was a discrete event, not ongoing. It is impossible for a court to order Mother to stop "not exchanging custody" for the Spring Break that father just missed. Also note that father possibly could have prosecuted mother for one count of contempt for each day that he was denied physical custody by mother.
(3) Direct civil contempt
The same mother in the previous example moves to Florida. She never tells father that she was planning to move. Father does not know where mother is. Father is not getting time with his children as ordered by the divorce court in the Permanent Parenting Plan. A sympathetic friend who gets mother’s Facebook posts sees a picture of mother with maternal grandmother and the children, unpacking boxes. Father initiates an emergency court hearing to have custody placed with father, to which maternal grandmother is subpoenaed.
Father’s attorney calls maternal grandmother to the stand and shows her the picture. Maternal grandmother admits that she helped mother move to Florida and the picture was taken in Florida.
Father’s attorney – “Where is your daughter living right now?”
Maternal grandmother –“ I ain’t a gonna answer that question.”
Father’s attorney – “Your honor, I request that you order the witness to answer the question.”
Judge – “Request granted. Ma’am your job in this court is to answer the questions of counsel honestly. I order you to give a truthful answer to father’s lawyer’s question.”
Maternal grandmother – “I am not going to lie, but I ain't going to answer the question, either.”
Judge – “ Ma’am, I find you in direct civil contempt. You will be confined until you provide a truthful answer to the question of father’s counsel.”
Maternal grandmother holds the keys to the jail cell. All she has to do is provide a truthful answer, and she will be released. I specifically used an example in which the witness was not a party, to demonstrate that one does not have to be a party to be guilty of direct civil contempt.
In this situation, a criminal contempt would allow maternal grandmother to serve up to 10 days in jail and then walk free, which does not help father. Father wants to know where mother and the children are. The civil contempt remedy will ultimately serve to give father what he wants, unless maternal grandmother decides that she likes living in jail.
From time to time, this scenario appears in cases where a reporter seeks to protect a source. The court will order a reporter confined until he or she discloses a source.
(4) Indirect civil contempt
The divorce court orders ex-husband to pay $1500 per month transitional alimony to ex-wife for three years. For the first eight months, ex-husband pays the full amount of alimony. Then, ex-husband goes three months paying an average of $800 per month, and claims he does not have enough money to pay wife. Ex-wife sues ex-husband under a civil contempt theory.
After a trial, the court finds that ex-wife proved, by a preponderance of the evidence, ex-husband willfully failed to pay ex-wife the full amount, when he had the ability to pay.
Judge – “I find you to be in civil contempt. I order you confined in the county jail until you pay $2100 into the court registry. I additionally order you to pay court costs, and $1500 in attorneys fees to ex-wife’s counsel. Bailiff, please transport ex-husband to the jail for processing.”
Once ex-husband gets to jail processing, he is allowed to start “dialing for dollars” – calling friends and family to chip in enough money to get released.
This case could be pursued as an indirect criminal contempt or an indirect civil contempt. If ex-wife pursued this as a criminal contempt, ex-husband would serve up to 10 days per month that he failed to pay the proper amount of alimony. But, ex-wife would still not have her money. What ex-wife really wants is the $2100, plus attorneys fees for her lawyer. Therefore, the better course of action is to pursue ex-husband's failure to pay under a civil contempt theory. Ex-husband will stay in jail until he pays the $2100. Civil contempt is an easier case to prove, as well, because the burden of proof is lower – a preponderance of the evidence, versus beyond a reasonable doubt – and ex-husband cannot plead the right against self-incrimination, which is granted by the 5th Amendment to the United States Constitution. He can be forced to testify, or the court can draw an inference that he failed to pay.
CAN ONE VIOLATION BE PROSECUTED AS BOTH A CIVIL AND CRIMINAL CONTEMPT?
NO. Many circumstances give rise to the ability to pursue a violation as a civil or criminal contempt. For instance, in example 4, above, ex-wife could have proceeded under a criminal contempt theory, alleging that each time ex-husband failed to timely pay the proper amount of alimony as ordered, ex-husband was guilty of criminal contempt. But, ex-wife and her attorney must "elect" whether to proceed under a civil contempt or criminal contempt theory. The election takes place based upon what type of contempt allegations are filed; i.e., what the pleadings say that are filed in support of the case and served on the alleged contemnor. A failure to properly elect a contempt theory could result in delay or even dismissal of a contempt case.
HOW DOES SOMEONE CHOOSE ONE TYPE OF CONTEMPT OVER ANOTHER IF BOTH ARE AVAILABLE?
This decision should be made with the assistance of counsel, on a case by case basis. There are general considerations, for instance, criminal contempt is often a harder case to prove, because criminal contempt must be proved under the evidentiary standard of "beyond a reasonable doubt", like any other criminal prosecution. This is a high standard. Furthermore, the 5th Amendment right against incrimination can be asserted by the alleged contemnor in a criminal contempt case, which means the alleged contemnor cannot be put on the stand during the case in chief of the prosecuting party. Civil contempt has a lower evidentiary burden, "by a preponderance," but not every contemptuous act can be prosecuted under civil contempt theory.
(Author -- W. Andrew Fox. This article is based upon Tennessee contempt law. The examples in this article are loosely based upon situations in which the author was personally involved or about which the author has read. This article provides general information on the law of contempt, and is not intended to be specific legal advice. This author retains all rights not granted to NOLO through ExpertHub's Content and Publishing Terms and Conditions.)