OPINION

Courts weigh many factors in determining contempt

The Examiner

We don’t have debtors’ prisons in America anymore. 

But we did in colonial days. 

And while prison would seem to be an effective deterrent to defaulting on a debt, tossing a debtor into the hole would seem to diminish the likelihood that they would ever be able to repay. 

Ken Garten

These days, the prime exception to the no-debtors'-prison policy in America is the use of a court’s civil contempt power to incarcerate individuals who willfully violate the terms of a court order and judgment for the support of a child or former spouse, or actions that are ordered to effect the division of property in a dissolution of marriage action. 

Contempt is a powerful remedy, but also quite fraught with technical and detailed requirements well beyond simply telling a court “This person owes me money. Order them off to debtors’ prison.” 

Instead, when a party seeks to have someone held in contempt, and jailed accordingly, for failure to perform financial and other obligations they are ordered to perform in a support or dissolution judgment, there are numerous technical requirements that the person seeking contempt enforcement must meet. 

The first rule of civil contempt is that the court ordering contempt must determine that the party against whom the contempt order is directed must be proven to have the ability to perform the obligation, and the specific obligation must be stated in the contempt judgment, so as to give the person being jailed the opportunity to “purge the contempt” by paying or taking the action that the court orders to avoid incarceration. 

The theory here is that if a party is ordered to pay or perform only after the court has determined that they have the financial or other ability to do so, then the person against whom enforcement is sought effectively has “the keys to the jail cell,” which they can use to secure their release by doing or paying what is ordered. 

Sometimes contempt is sought because a party fails or refuses to sign necessary documents that are ordered in a dissolution of marriage, like a deed to a house, or documents to divide a retirement plan. 

Oftentimes, a contempt remedy is sought for failure to pay child support, spousal maintenance, or some other financial obligation. Sometimes, the past due balance can be enormous after an extended period of non-compliance.  

In order for someone to be jailed for contempt, the court judgment they are claimed to have violated must be clear, specific and unequivocal as to the violation, and if it relates to a failure to pay money, that specific obligation must be clearly established. 

Then, the court is required to determine the recalcitrant party’s true ability to pay, and limit the payment requirement to avoid incarceration to a certain sum the court finds them to be able to pay, hence effectively giving the recalcitrant party the “keys to the jail cell” whereby they can “purge the contempt” by paying what is ordered, based on a finding of their ability to do so. 

Civil contempt is classified in the law as an “equitable remedy”. And, a basic principle of equitable remedies is that “he who seeks equity must come to court with clean hands.” What this means is, if a party seeks to invoke the court’s contempt power, they should not act in bad faith, engage in shady dealings, or be in default on obligations themselves, as “unclean hands” can provide a defense to an equitable civil contempt remedy. 

In addition to family law cases, where the contempt power is most often sought to compel performance of payment or other court ordered obligations in a dissolution of marriage or paternity judgment, including enforcement of parenting time visitation orders that are alleged to have been violated, contempt is a remedy that can be used to enforce an injunction that orders someone do or not do something in a civil context, or where specific performance of an obligation may be ordered. 

However, the civil contempt power can only be used where a court specifically finds that the party has the ability to perform, so they decide if they want jail, or to do or pay what is ordered, and where to party seeking enforcement does not carry the taint of unclean hands. 

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.