In 1992’s Scent of a Woman, Al Pacino’s character, Lt. Col. Frank Slade, gives a perfect example of direct contempt of court. (The Academy liked the performance as well, awarding Pacino the Best Actor award). As his helpless attorney looks on, Col. Slade’s diatribe to the school disciplinary court included:
“Out of order? I’ll show you out of order. You don’t know what out of order is, Mr. Trash… If I was the man I was five years ago, I’d take a flamethrower to this place.”
While fun for Hollywood drama, most contempt of court issues involve the subject of this blog – enforcing compliance with court orders, rather than a litigant having an outburst in court.
This blog is a brief overview of contempt of court in a Colorado family law case – for a complete discussion of contempt of court in Colorado, see the all-new article in the Colorado Family Law Guide, entitled Punitive & Remedial Contempt of Court.
What is Contempt of Court in Colorado?
Contempt is a quasi-criminal proceeding to either (1) force the other side to comply with an order (remedial contempt), or to (2) punish a party for past non-compliance (punitive contempt).
If the concern is immediate compliance, contempt won’t work – it’s a bludgeon, not a scalpel. As an example, if the ex is living in the former marital residence but is not paying the mortgage as ordered, by the time you finish up a contempt, the lender may have already started foreclosure proceedings. In such a case, the most practical solution would be for the concerned party to protect his credit by paying the mortgage temporarily, while awaiting contempt, and seeking reimbursement.
So if the goal is immediate enforcement, consider alternatives to contempt, such as asking the clerk of court to sign a document transferring title, garnishing wages for support, etc.
Also remember that not every wrong has a remedy – the wrongdoer may have a legitimate defense to the contempt (e.g. inability to pay for a support case), or if the violations are relatively trivial, it often will not be worth the time or expense of litigating contempt, much less the risk of incurring the wrath of a magistrate with an already-busy docket. For more of these practical considerations, see the contempt of court article referenced above.
Contempt of Court Procedure
The steps in a contempt typical remedial contempt of court case are:
- File a verified (sworn) motion for contempt, setting forth the details of the violations.
- Once the court issues a contempt citation commanding the other party’s presence, have that citation personally served on the party using a process server.
- Show up for the contempt advisement, where the alleged wrongdoer is advised of his/her rights. This is NOT the full-blown contempt hearing, but a quick 5-10 minute advisement where the court will set the date of the hearing, and typically order mediation.
- Attend mediation (typically ordered in El Paso County).
- Participate in the contempt hearing, which is typically one hour, with witnesses and any documents you need to prove the contempt.
- If the wrongdoer is found in punitive contempt and jail is ordered, the jail starts immediately.
- If the wrongdoer is found in remedial contempt, the court will set a deadline for compliance, typically have a review hearing, and if the violator is not in compliance by the time of that hearing, incarcerate him/her until compliance.
The whole process, from start to the contempt hearing itself, typically takes about 4 months in El Paso County, but that duration will vary depending upon which county the case is in.
Contempt is quicker than a full-blown divorce case, but given how long contempt takes, it often ends up being an after-the-fact remedy, one where the court either punishes the wrongdoer, or reimburses the innocent party who stepped up to the plate, rather than a process which actually prevents the wrong to begin with.
What is Remedial Contempt?
A remedial contempt proceeding is one where one party is in violation of the court order, and the other party is trying to secure compliance with the threat of punishment unless he/she complies. With remedial contempt, the goal is NOT to punish the wrongdoer for a past violation; instead, it is a tool to use against someone who is currently in violation to try to force the person to comply.
One classic example of remedial contempt would be that the payor is behind in his/her child support or maintenance. The payee files for contempt of court, and assuming the court finds the payor has the ability to pay, the court will typically set a deadline to pay up, or else go to jail.
With remedial contempt, the court can order compliance with the original order, set a deadline or the wrongdoer will to to jail, and also order the payment of attorney’s fees and costs.
The key to remedial contempt is that it’s an ongoing violation, capable of being “cured”, or fixed. If there is a one-time past violation, remedial contempt is often not the solution, and you may need to consider punitive contempt, if appropriate, or alternative ways of enforcement.
Punitive Contempt = Punishment
Punitive contempt is, as the name suggests, a process by which the wrongdoer is punished for a past violation of the orders.
Even if the wrongdoer is now in compliance with the orders, if the past violation was egregious enough, then punitive contempt may be the best way to proceed. Note, however, that a punitive contempt proceeding affords the wrongdoer similar rights as at a criminal trial, including the right to remain silent, the right to counsel, the presumption of innocence, and the requirement to prove the violation beyond a reasonable doubt.
And after all of this, you may end up simply doing a free service for the state to enforce its orders, with no actual gain to you or your case.