September 26, 2016

Contempt of Court, the Supreme Court Speaks

It’s been more than a year since the Connecticut Supreme Court issued its decision in Brody v. Brody, 315 Conn.  300 (2015) and  Connecticut  family law attorneys are still debating the impact of the decision.  How and how much will the new “clear and convincing” evidence standard, rather than “a preponderance” standard,  impact our clients, cases and practice?

But rather than a legalistic discussion, what is it that you need to know about contempt of court as you negotiate your family court agreements or, later on, need to enforce them?

First, family court contempt is civil rather than criminal contempt.  This distinction is important because the purpose of civil contempt is to stop the violation of a court order and sometimes to compensate the person who was injured as a result of the violation.  (As the Supreme Court explained in the Brody decision,  “A contempt … coerces the defendant into compliance with the court’s order, [or]… compensates the complainant for losses sustained.” To the dismay of many people who justifiably feel wronged by their former spouse, civil contempt isn’t intended and can’t be used by a judge to punish the offender.

Second, before a judge can find someone in contempt, there must be a clear and specific court order or provision of a court order that the alleged offender is violating—what does the court order say your former spouse must do or not do.   (The Brody decision says “the directives of the underlying court order [must] be clear and unambiguous”.) An intention, even sincere when made, or agreement to agree, even if part of a court order, isn’t enforceable by the court’s power of contempt.

Third, violating a court order alone isn’t necessarily going to result in a judge finding your former spouse in contempt of court.  The offender must typically be choosing, to some extent, to violate the court order.  This component of contempt is often very frustrating to a person whose former spouse isn’t following a court order.  For example, the reason your former spouse may not be making the credit card payments as the court orders says he must, doesn’t lessen the harm his failure to pay is having on your credit.

Fourth, and here’s where Brody v. Brody is relevant, you need to show a judge by  clear and convincing evidence at trial that your former spouse is in contempt.  What does that mean exactly?  More than a preponderance of the evidence and less than completely certain.  A lot of evidence.   As lower courts implement the Brody decision we’ll get a better sense of what “clear and convincing” means.  For the time being, anyone considering filing a contempt motion against their former spouse needs to carefully gather, organize,  and critically evaluate all the evidence which will support the motion before making the decision to file.

Obviously, an experienced divorce and family lawyer can be especially valuable to you as you evaluate your evidence and create the most convincing plan for presenting the evidence to the court.

More important but perhaps not so obvious – working with an experienced and detail oriented family lawyer to make sure your original court orders are clear, specific, and practical should a) limit the need to file a contempt motion, b) increase the likelihood of success if you pursue contempt. 

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