11.2 Enforcement: Contempt of Court

• Library: Virginia Family Law: A Systematic Approach (Virginia CLE) (2018 Ed.)

11.2 ENFORCEMENT: CONTEMPT OF COURT

11.201 Jurisdiction. The power to determine contempt of court is inherent. ³ In addition to the courts' inherent powers, several statutes grant the courts specific authority to determine contempt of court. ⁴ A court that has issued an order has the power to enforce its order. In cases where a circuit court shares concurrent jurisdiction with a juvenile and domestic relations district court, the circuit court is authorized to transfer the matter to the

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juvenile and domestic relations district court where the only relief sought is the enforcement of the order. ⁵

11.202 Applicability. A contempt of court proceeding can provide a remedy in a variety of situations commonly encountered in the practice of family law. The terms of a child custody or visitation order are enforceable through the contempt powers of the court. ⁶ A party may be compelled to pay spousal support and child support that has been ordered by the court. ⁷ In the context of domestic violence, violating the terms of a protective order constitutes contempt of court. ⁸ Disobedience of a pendente lite decree entered in a divorce suit is punishable as contempt of court. ⁹ Some provisions of an equitable distribution decree are also enforceable as contempt of court. ¹⁰ This would apply to the portions of an equitable distribution decree creating personal obligations that must be fulfilled by a party. Typically, provisions enforceable by the contempt powers of the court require a party to act or not act in a certain way. A monetary award granted in an equitable distribution decree may be enforced as a money judgment is enforced but also may be enforced through the court's contempt powers. ¹¹

11.203 Criminal Versus Civil Contempt. A contempt of court proceeding may be either criminal or civil. Criminal contempt is prosecuted to preserve the power of the court and to vindicate its dignity. It is used to punish the party in contempt. ¹² The person in contempt of court, the "con-temnor," can be punished only for actions that have already occurred. ¹³

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In contrast to criminal contempt, a civil contempt proceeding is brought to enforce the rights of a private party. Its chief purpose is to provide a remedy for the private party rather than to punish the contemnor. ¹⁴ A civil contempt proceeding is designed to coerce the contemnor into complying with the terms of the order or decree. ¹⁵ In a civil contempt action, the contemnor must be able to "purge" himself or herself of contempt and be released from whatever sanction the court might impose. An order or decree of civil contempt must state the purging conditions clearly. The burden of proof for purging a civil contempt rests with the contemnor. ¹⁶

A contemnor who fulfills the terms of the order, thereby purging himself or herself of contempt, has remedied the harm suffered by the opposing party. If the contemnor cannot escape further punishment by complying with the terms of the court order, the contempt is criminal rather than civil. For example, if a fine or jail term is imposed unconditionally so that the contemnor can do nothing to be relieved of the punishment, the contempt is criminal. ¹⁷ If a fine is to be paid to the government rather than to the opposing party, the contempt is also criminal. ¹⁸ The fact that a private party might benefit indirectly from a criminal contempt action does not transform it into a civil contempt action. Likewise, the fact that the power of the court is vindicated in a civil contempt action does not transform it into a criminal contempt action. The court will look to the primary purpose and effect to determine whether the contempt proceeding is civil or criminal. ¹⁹

11.204 Elements. A criminal contempt of court requires either violation of a direct order or conduct that undermines the integrity of the court. ²⁰ The contemnor's action must be intentional and willful. ²¹ A criminal contempt must be proven beyond a reasonable doubt. ²²

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A civil contempt requires violation of a court order or decree. The order or decree must contain an express command or prohibition. ²³ In order to make out a prima facie case of civil contempt, the moving party need prove only that the alleged contemnor did not comply with the court's order. While a bad faith or willful violation of the order will need to be found by the court in order to hold the alleged contemnor in contempt, ²⁴ it need not be proven at this stage. ²⁵ Proof of civil contempt is by a preponderance of the evidence. ²⁶ The court may find a person in contempt for violating a court order only if the alleged contemnor had actual notice of the court order. ²⁷ When the alleged contempt occurs in a suit for divorce, annulment, or affirmation of marriage, the alleged contemnor should be personally served, even if represented by counsel. ²⁸ A courtesy copy should be mailed to opposing counsel.

11.205 Defenses. After the moving party establishes a violation of the court order or decree, the burden shifts to the alleged contemnor to provide justification for the failure to comply. ²⁹ In Virginia, an inability to pay court-ordered support is a defense to a charge of contempt. ³⁰ An alleged contemnor may also defend on the basis that the obligation has been met or has terminated. This defense is often the focus of a contempt action brought to enforce the terms of a separation agreement that has been incorporated into a divorce decree. ³¹ Where a willful failure to comply with the terms of a court order must be shown, the deposit of child support payments into an escrow account was found by one court to negate the willfulness element. ³²

Several arguments have been found not to be defenses to a contempt of court action. For example, laches may not be raised in defense of the

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failure to comply with provisions of a child support decree. ³³ The inability to enjoy visitation rights based on obstruction by the other parent is not a defense to a contempt of court action for failure to pay child support. ³⁴

11.206 Procedures. Whether civil or criminal, a contempt of...