WHAT HAPPENS WHEN SOMEONE DOES NOT COMPLY WITH A COURT ORDER?
So, your husband/wife didn't pay you the child support? Or perhaps he/she didn't give you visitation with your children as ordered? Or perhaps you didn't receive the monies from a retirement fund or sale of the house that you were supposed to get. What do you do? What is your remedy?
You and your spouse, former spouse, or father/mother of your child may have entered a stipulation of the parties, that is an agreement between the two of you, regarding certain issues. This stipulation may be entered as a court order, that is on a temporary basis, or as a final judgment, meaning the matter has ended. Or, perhaps you didn't agree when you were in court, and the matter was brought before the court, and the judge issued either an order or a judgment in the matter. Either way, the parties' obligations and responsibilities have been established. Now it is up to each party to fulfill their obligations.
Unfortunately, there are many times when individuals, for various reasons, fail to adhere to a court order or judgment. Sometimes, this failure to comply may occur only once, or it may continue on a regular and consistent basis. In either case, the party who feels aggrieved, that is who is not getting what he/she was ordered to receive, may bring the matter to the court's attention by filing a Complaint for Contempt.
The Complaint for Contempt may be based on civil contempt, which may bring monetary sanctions and punishments, or it may be criminal contempt, whereby the court may order a variety of punishment, including incarceration.
The basis for a contempt must be that there was a clear and unequivocal order or judgment of the court, that the defendant, that is the wrongdoer, knew and was aware of the order, and deliberately and willfully disobeyed that order.
Sometimes the defendant will argue that there was a "side agreement" made between the parties. This topic has been addressed in a prior newsletter of November 2009. While it is highly unlikely that a court will accept the idea that there was a "side agreement," a judge will consider all of the circumstances to determine whether the defendant deliberately and/or intentionally failed to comply with the court order.
When a Complaint for Contempt is filed, a summons issues, and the defendant must be served at least seven days prior to the hearing date. At the time of the hearing, the parties will likely go to the probation department to attempt to resolve the issue. In the event that the issue is not able to be resolved, the matter is brought before the court, and the judge will listen to the parties or their respective counsel prior to making a decision. If a judge finds a defendant guilty of contempt, a judge may order a range of punishment, including but not limited to payment for attorney's fees, lost wages, service fees such as constable or sheriff fees, and depending on the circumstances, and whether or not the defendant is able to resolve the issue at the time of the hearing, may also order incarceration. In the event that the parties have not been before the court in the past, or depending on the amount of money owed for the particular facts of the case, a judge may issue an order/judgment that will resolve the issue. However, if there is a significant amount of money owed for back child support or other matters, or if a party has brought the other side in on numerous occasions seeking compliance of a particular order, the court may order a suspended sentence of perhaps seven to 30 days or more, or if the matter is particularly egregious, may order that the party be ordered to jail.
In the event that a party is ordered immediately to jail, he or she will be removed from the court room in handcuffs and leg shackles. Depending on the situation, a judge will likely order a purge amount, that is the amount of money that an individual must pay in order to be released from custody. These monies are paid at the court prior to the defendant being released.
In the event that the contempt relates to failure to pay child support and/or failure to pay child support in a regular and consistent manner, a party may consider using the Department of Revenue to collect the child support as opposed to having the individual pay the child support directly to the other parent.