Motion for Contempt of Court in Alabama
Contempt is a finding that a party has failed to obey a court order, thus disobeying the authority of the court. If a court finds a party in contempt, it can punish the party for that contempt. In Alabama, a contempt motion can be filed to force a Court Order to be followed or to punish someone who has violated the order. Contempt by a parent is commonly associated with failure to pay child support. However, contempt may also be filed to punish a failure to comply with Court orders in divorce cases, such as failure to pay alimony or improper visitation.
Alabama courts recognize three forms of contempt. Civil contempt applies where the court has the ability to coerce the party into compliance with its order by imposing a fine or incarceration for continued disobedience. Since the contempt order operates to force compliance with a prior ruling, the contempt order is coercive in nature. The punishment for civil contempt may endure only until the individual is compliant with the Court Order in question. Criminal contempt, on the other hand, uses its coercive power to punish past disobedience with a fixed fine or term of imprisonment with the express intent to punish the wrongdoer for past acts of misconduct. Because the order is primarily designed to punish and does not change the rights or status of the parties , but is rather punitive in nature, criminal contempt is punitive, rather than coercive, in nature. Further, there exists another form of contempt in Alabama known as "constructive contempt". Constructive contempt refers to those contempt situations that are not direct contempt, but is rather based on an act or omission relating to the orderly operation of the court. This type of contempt generally follows the same procedure as civil contempt.
Contempt must be proven by "clear and convincing evidence." Clear and convincing evidence consists of the burden of proof necessary to justify a finding of contempt. Clear and convincing evidence requires a high degree of certainty in the validity of the finding of contempt, roughly corresponding to the clear and convincing preponderance of the evidence standard in civil cases. In cases in which contempt is shown, the Alabama courts have broad discretion in the remedy imposed. Among others, the following options are available to the court: (a) award attorneys’ fees; (b) modify the child support order prospectively; (c) award a money judgment; (d) incarcerate the parent; (e) make appropriate orders concerning visitation and/or parenting time; or (f) the court may even suspend the contempt hearing pending further compliance by the defaulting party.
When to File a Contempt of Court Motion
In the context of family law, there are generally two recognized grounds that justify the filing of contempt of court actions. Those areas are custody and financial issues. In some situations, a party may engage in conduct which would violate other court orders but the two main areas presented below encompass the majority of cases that are heard in Alabama family law courts.
Custody Cases – In the custody context, the filing of contempt is the most common course of action in light of the desire to hold a party in contempt for violating a court order. Alabama courts will entertain contempt actions for custody issues including but not limited to:
Financial Issues – In the financial context, contempt filings are also very common. In almost any situation involving failure to pay child support, or other financial obligations, the custodial parent can initiate a contempt action against the non-custodial parent. Courts can even issue jail sentences for those who are obligated to pay child support but refuse to do so. Other issues related to finances which may warrant a contempt filing include:
In light of the ability of a party to file an action for contempt, consider the example where the non-custodial parent refuses to pay his or her financial obligations such as child support. In such a case, the custodial parent submits his or her motion for contempt to the court requesting a penalty against the non-custodial parent. The court has the discretion to award a money judgment when appropriate, of up to twice the amount owed in child support; a fine and/or payment of the custodial parent’s attorney fees and/or jail time (in extreme cases).
The Legal Process of Filing a Contempt of Court in Alabama
Filing a motion for contempt of court does not happen without a court order being entered. Be sure you are not just annoyed with the other party, or upset about the way they are reacting to you, or feel like they should do what you want them to do. Unless the other party has violated something entered by the Court, contempt of court would not be an appropriate step. On occasion, someone will say "the Judge makes the rules; they can’t override the Judge"; however, that is not quite accurate. The parties always have the ability to agree to something different than what the Court has ordered, and such agreement would be enforceable by contempt. But in most circumstances, unless either the Judge who entered the Order agrees to change it, or the parties agree, the contempt process is sometimes necessary.
Contempt generally has three steps: Panel Discussion, Gray Letter, Hearing. While all Judges treat the process somewhat differently, these three steps are fairly common. As noted above, this process assumes the parties have been to Court, and the other side has violated the Order in some manner. Most of Judges will first require you to go speak with the lawyer who represented you (or appeared in opposition to your petition) about getting the situation resolved. Often this happens on the record in front of the Judge during Court. If it does not happen in front of Court, the Judge will often make a comment that "you two go see the lawyer in the hallway and work it out."
A Gray Letter may or may not be requested by the Judge at the time of the Pane Discussion. The Judge gives the other side say 10 days (the Judge will set the time limit) within which to comply with the Order in question. Usually contempt hearings will be set at least 2-4 weeks out, just based on Court calendars. During this period, the lawyer has to send the letter to the other party via Certified Mail Restricted Delivery, so there will be a record as to when he received the letter.
If you still do not have compliance with the Court’s Order, then a Motion for Contempt, Motion, and Notice of Hearing can be filed with the Court to schedule the hearing. The Motion is fairly straightforward in that it lists the violations of the Court Order while the Notice will note a date and time for the hearing before the Judge, allowing for at least 10 days notice of the time of the hearing. Most Judges will not give any less than 10 days notice of the proposed contempt hearing. You show up at the Court and present your evidence, making each party testify under oath, if required, and the Judge will determine whether the contempt has occurred.
What Happens at a Contempt Hearing in Alabama
When a contempt of court proceeding is underway, it typically consists of two portions. After evidence is entered, the judge is given a chance to review the evidence and make a ruling. Most judges will do one or the other the same day. However, if further examination or witnesses are needed, the case will be continued.
At the beginning of the contempt hearing, the judge will hear arguments first. The party seeking contempt (the movant) speaks first and presents his or her evidence. All relevant evidence should be introduced; this includes witnesses and other evidence that may be presented in person, via documents, under oath, or by other means decided by the judge.
After the movant presents his or her evidence, the responding party is granted an opportunity to present his or her evidence. At this stage, the respondent can seek to have the movant’s evidence limited to what is allowed by the law. If the judge grants the respondent’s motion to do so, the movant’s evidence will be limited as requested. Otherwise, the respondent will present his or her evidence as desired.
At the conclusion of all the evidence in the case, the judge withholds his or her decision until there is time to review all the evidence presented. The judge may rule from the bench during the same hearing, or continue the case and make a ruling at a later date. Even when the judge states that he or she is continuing the case, the judge may still make an oral ruling regarding whether there has been contempt. In a situation like this, the judge may also issue an order requiring the alleged contemnor (the party accused of contempt) to comply with the court order in question before the judge sets the case for a later hearing. The judge may then determine the sanctions appropriate in the case and set a hearing to determine the amount of sanctions.
In some cases, the judge may choose to issue a "show cause" order. This is essentially an order that the alleged contemnor must "show cause" why he or she should not be found in contempt of court. Because the judge gives relatively little notice that sanctions might be imminent, parties are generally not given the opportunity to comply with the original order prior to being held in contempt at a show cause hearing.
If, on the other hand, the judge determines that the movant has not carried his or her burden of proof in proving the contempt, the judge will enter an order dismissing the contempt petition and the case will be over.
Penalties for Contempt of Court
If a court finds a party in contempt, the court can issue a number of potential sanctions. These sanctions are generally designed to accomplish three goals: (a) punish the disobedient party; (b) coerce the disobedient party into complying with the previous order; and/or (c) both punish and coerce the disobedient party.
A court can impose any fine it deems appropriate; however, courts are generally careful not to impose too heavy of a fine or penalty. Absent statutory authority, nothing in Alabama law prevents a court from imposing a fine greater than $100.00, or from imposing a period of incarceration of no greater than 30 days .
In addition, Section 12-17-54 of the Alabama Code states that in certain civil actions, "the court may punish a person guilty of a willful disobedience or resistance to its lawful process or order as [it] might have done in case of contempt committed in its presence." Case law suggests that the imposition of a $50.00 fine for failure to comply with an order – in the absence of any willful intent to disobey the court order – would generally be considered an abuse of discretion. Courts will be more inclined to impose penalties for failure to comply with an order when the act is without doubt intentional and the court order was clear, unequivocal, and specific in its directive.
Seeking Legal Help for a Motion for Contempt of Court
If you have a contempt of court cause of action it is best to hire a lawyer. The Family Law system in Alabama is very attorney intensive. It is not uncommon for a contempt motion filed by a party who is a non-lawyer to be dismissed on a technicality that could have been avoided if an attorney had been guiding the person through the process of filing. For example, our local courts have recently gotten strict on the mandatory language for certifications that the Judge shall sign at the end of every motion and order concerning visitation (it also shows I haven’t done my updating on this blog for almost two years). These varying strict interpretations are not usually spelled out in your local Court’s rules but they have become a reality. The cleverness that may work for you in a normal Civil lawsuit will usually hinder you when filing a contempt motion against your ex who is not paying child support. No one is exempt from contempt of court in Alabama including the Court itself when the wrong documents are filed.
Even when a Court decides to overlook a technicality, the use of an attorney to guide you through the process is of extreme importance. People have gone to jail on weekend and spent time away from their job on Monday because the parent did not properly complete the paperwork. If you are a non-lawyer reading this you may think it is a ridiculous situation but we are not permitted to help on the legal paperwork with a "contested hearing." This means that if there is no agreement and you disagree with the contempt motion filed against you, you will need to go hire a lawyer to help you handle the paperwork the day of court. The more family law attorneys a Judge has in the courtroom the more likely it is that they will be attending to the paperwork on behalf of their client.
So if you think you can represent yourself in a court system and "keep the other side honest" you are mistaken. Judges do not like lay people fighting in Court, they do not like rude behavior from parties that are represented and not represented, they want each side to state their case and move on. There is no guarantee that you will win your case or that the Judge will follow your interpretation of the law. You can be jailed if the Judge finds you to be in contempt. Even if the other parent is not following his or her obligations in the Agreement, it takes hard work, time and luck to jail a litigant in Alabama and that luck may not always be with you.
In conclusion, the best advice is to hire an attorney or at least consult with an experienced Alabama family law attorney about your rights and how best to proceed as soon as you believe that the other party is in contempt.
Contempt of Court in Alabama FAQs
Q: Who can file a motion for contempt?
A: Generally, anyone who has been affected by another party’s non-compliance with a court order. This can be an opposing party in litigation, a party’s attorney or sometimes even a third party if their actions are sanctioned by a court order.
Q: How long do you have to file a motion?
A: As long as there is still the possibility of meaningful relief, there is no statute of limitations on filing a motion for contempt.
Q: Do you have to file it in the same court?
A: In order to hold a party in contempt, the contempt action must be brought in the the court that issued the order being violated. As for filing in a division of the Circuit Court, such as in Jefferson County, Alabama, there are choices. The party filing the contempt motion may file it in either of the Divisions where the original action was filed.
Q: Do you have to give notice to the other side?
A: Yes. Except in cases of contempt for failure to pay child support, when you make a motion for contempt, you must serve notice on the other side and upon the other side’s attorney (if they are represented.)
Q: Is personal service required?
A: If the contempt is for failure to pay child support, you have to personally serve the other party. If the contempt is for violation of other court order, then you can serve the contempt motion on the other side’s attorney by certified mail , and then serve the other side with a copy of the notice by regular mail.
Q: Can both parties be held in contempt?
A: Yes, as long as both parties have violated a clear and specific court order. The standard is that there must be no ambiguity in the order and that it must spell out exactly what is to be done or not done.
Q: What relief will the court grant for a filing contempt?
A: That depends upon the circumstances of the case and of the contempt. Usually, punishment for contempt is expensive to the party in contempt. The court might order the party to pay the opposing party’s attorney’s fees and costs; award damages; find the contempt of court to be a tort that the contemptuous party must make amends for; and/or garnish the contemptuous party’s wages or other sources of income to collect monetary damages awarded by the court.
Q: Does a contempt order generate a judgment/civil judgment?
A: Yes. Contempt orders create a money judgment/civil judgment that can be enforced by garnishment and placed on the circuit court’s judgment roll.
Q: Does a contempt finding go toward child support modification calculations?
A: Yes. If the contempt finding is based upon the payment of support, and the amount paid by the party found in contempt was reduced from the original amount ordered to be paid, the difference is counted as income the party is earning after the support order was entered.