Contempt is a process where a Colorado court can enforce its orders. You can be held in contempt for both a (1) direct violation of a court order or an (2) indirect violation. A direct contempt can occur when the judge him or herself observes the conduct in the courtroom. This involves situations like the ones you might see on television or in a movie where the witness disobeys the judge in the middle of the courtroom and the court holds the person in contempt. Indirect contempt is where the person violates a court order outside the presence of the judge. This type of contempt is far more common and is the one worth discussing. Contempts often arise in dissolution of marriage actions and parenting-related litigation.
What does Contempt Mean?
In Colorado, contempt actions are governed by C.R.C.P. 107. Contempt is defined as “disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.”
Remedial vs. Punitive Contempt
Contempts are covered by Colorado law in a rule called C.R.C.P. 107. The rule explains that there are two types of contempts, (1) remedial and (2) punitive.
In general, a remedial contempt is one where the person is asking the court to “remedy” the violation of the court order and force the person to comply. In its simplest form, this sort of contempt is used to persuade the person to comply with the court’s orders. As an example, the person might put a person in jail until they pay a certain amount or fine a person every day until they do something they are supposed to do. The key to remedial contempt is the idea that the contempt goes away once the problem has been fixed (or, in legal terminology, “purged”). That is, if a person is ordered to sit in jail until he or she pays, then when payment is made the jail time is no longer necessary.
Punitive contempt is different because it involves punishing the person. Rather than fining the person or having them sit in jail until compliance, punitive contempt involves the person suffering a consequence whether they comply with the court order or not. Punitive contempts are used to “vindicate the dignity of the court” and to impose “punishment” on the person. People v. Razatos, 699 P.2d 970, 974 (Colo. 1985). In general, punitive contempts are used to ensure that a person does not violate the court’s orders again and so that the court can ensure that it and the law are not disrespected.
Proving Contempt (Violation of a Court Order)
However, as with so many things in the legal world (especially in family law), it is generally not as easy as simply stating someone did not do something a court order says they should have done. A court must make the following findings for remedial contempt:
- There was a valid court order;
- The person against whom contempt is alleged knew of the order;
- That person did not comply with the order; and
- That person has the present ability to comply with the order.
Concerning punitive contempt, a court must make the following findings:
- There was a valid court order
- The person against whom contempt is alleged knew of the order
- That person had the ability to comply with the order; and,
- That person willfully refused to comply with the order.
Although the differences between the findings required for remedial and punitive contempt may appear slight at first glance, they present very different issues as to the consequences for contempt.
Differences Between Remedial and Punitive Contempt
With remedial contempt, the first three elements can usually be more easily proven, but it may be more challenging to demonstrate the person’s present ability to comply with the orders. Concerning a party who has not paid child support, it will usually be relatively easy to show there is a child support order, the other person knew about the order, and that they did not pay. However, whether the person has the “present ability to comply” is more complicated. If the person ordered to pay child support has lost their job, that may be sufficient to show that they do not have the present ability to comply with the order. It is also important to note that for remedial contempt, it must be a present ability to comply. Past or future ability to comply with an order is not sufficient to find someone in remedial contempt. A court must find that a person can comply with the order at the time of the hearing.
This issue often arises in domestic relation cases concerning parenting time. For example, take the situation where one party was to have parenting time over the Thanksgiving holiday, but the other party refuses to bring the children. It would likely be easy to prove there is Court order regarding parenting time for the Thanksgiving holiday. It would also probably be easy to prove the other party knew of the order, and that party did not comply. However, the question becomes does the non compliant party have the present ability to comply. Unless that party has easy access to a time travel device, the answer is no, they do not have the present ability to comply. As a result, failure to comply with parenting time orders is better addressed through the parenting time enforcement statute, than through remedial contempt under Rule 107. See C.R.S. § 14–10–129.5.
Remedial Contempt Mindset
It is also important to note that the mindset or intent of the non compliant party is irrelevant to find them in remedial contempt. It does not matter whether they intentionally refused to comply with the order. It only matters whether they did or did not comply. Further, a party must be allowed to “purge” the contempt. This means they have the opportunity to come into compliance with the order. For example, if a party was required to transfer funds from a bank account but did not, that person could purge the contempt by transferring the funds.
Punitive Contempt Mindset
One of the most significant differences between remedial and punitive contempt is that to find a person in punitive contempt, the Court must find that they willfully refused to comply with the order. Thus, for punitive contempt, the person’s mindset or intention is relevant. A person willfully violates an order if they act voluntarily, knowingly, and with conscious disregard of the consequences of their conduct. Additionally, the conduct associated with punitive contempt must be found to be offensive to the authority and dignity of the court. Punitive contempt is as much about someone’s behavior towards the Court, as it is about the person’s behavior towards the other party. Concerning the child support example, if the nonpayment of child support were accompanied by an email from the non-paying party stating, “I do not care what the orders or the judge says. I am not paying you another dime and I do not care what happens,” that would be a prime example of willfully refusing to comply with Court orders.
Another major difference between remedial and punitive contempt is the standard of proof required to find a person in contempt. For remedial contempt, the legal standard is “preponderance of the evidence,” which essentially means the Court has to determine whether, after considering the evidence, it is more likely than not that each element has been met. On the other hand, the standard of proof for punitive contempt is “beyond a reasonable doubt,” which is the highest standard and is the one used in criminal cases.
What are the consequences of being found in contempt?
Because the potential sanctions and consequences may include jail time, contempt proceedings are quasi-criminal and have some overlap with criminal cases. For example, concerning indirect contempt, a party must plead guilty or not guilty to the allegations. Also, because of the potential that a person’s freedom and personal liberties may be restricted, the Fifth Amendment right against self-incrimination may come into play.
Orders to Show Cause & Citations for Contempt
When a person’s behavior rises to the level of contempt and can be seen or heard by the court (direct contempt), the Court can order sanctions (usually punitive) right then and there. However, with indirect contempt, a motion must be filed, and the Court will enter a citation without further input from the other side (ex parte) informing the other party of a date and time to appear in Court and show cause as to why they should not be punished for contempt. Much like a plea hearing in a criminal case, the show cause hearing (also often referred to as an advisement hearing), provides the party against whom the contempt allegations have been brought the opportunity to be advised of their rights and to plead guilty or not guilty. After the show cause hearing, a full hearing on the substantive issues will be set. At that hearing, each side will have the opportunity to present witnesses and evidence in support of their claims or defenses.
What Happens When Someone is in Contempt?
So, after the Court finds someone in contempt in based on the relevant criteria, then what happens? The sanctions available to the court depend on the type of contempt. For remedial contempt, the court can order sanctions designed to force or compel compliance with the order. As stated above, remedial sanctions are designed to fix the problem, so remedial sanctions will be directly related to the specific claims of the case, but may look something like one of the following examples:
- Within 30 days, party A is to transfer the funds from xxx bank account into the bank account of party B.
- Party A owes outstanding child support arrearages in the amount of $15,000. Party A shall pay $1,250 per month for 12 months in addition to the regular amount of child support (note: Colorado law does provide for interest on past-due child support, so interest would likely be included, but for sake of simplicity, interest is not included in this example).
- Per the Court’s Permanent Orders, party A was to receive the family dog from party B. Party A shall return the family dog to party B within three days.
Common Questions Related to Contempt
You may be asking, but if they didn’t comply the first time, don’t the examples above just give them more time to do what they were initially supposed to? Or, but what prevents a party from just refusing to comply with the contempt orders? These are excellent questions.
First, a court can send the non compliant party to jail or order them to pay a fine until they comply with the orders. Often, courts will give the non compliant party a specific time period in which to become compliant or then be sent to jail until they comply. While sending an ex-spouse (or soon to be ex-spouse) to jail may be an attractive proposition, it many situations, jail time would be contrary to the goal of obtaining compliance. For instance, jail time may prevent a party from being able to comply with orders. For this reason, and because a jail sentence is a severe remedy, it is not common.
Second, a court can order the offending party to pay the attorney fees of the party bringing the remedial contempt claim. While an award of attorney fees is available for remedial contempt, attorney fees cannot be awarded for punitive contempt.
What if the Court finds a person in punitive contempt? The only sanctions available for punitive contempt is a fixed jail sentence, a fine, or both. Unlike remedial contempt where a Court can order a party to stay in jail until they have come into compliance with the orders, a jail sentence under punitive contempt must be a fixed sentence, and for no longer than six months (except under certain circumstances rarely present in domestic cases). If a fine is assessed, it is paid to the Court and not the other party. If a party is found to be in punitive contempt of court, that person will be allowed to make a mitigating statement, basically telling the judge why they should be sentenced to less time or why a minimum sentence would be appropriate.
There are various nuances or circumstances which may arise in any given case that could present complexities not described in this blog article. There are also many strategic decisions related to contempt proceedings. For example, gathering evidence through discovery may be necessary, but may become problematic depending on whether remedial or punitive sanctions have been sought concerning a party’s Fifth Amendment right against self-incrimination.
If you have questions about contempt actions, are considering filing a contempt action, or contempt allegations have been brought against you, the attorneys at Griffiths Law have the knowledge, experience, and expertise to help.