Commentary: When is contempt continuing?

• Author: Herman, Gregg

Byline: Gregg Herman

As almost any family law attorney can attest, manipulative payors exist. Unfortunately, due to a recent decision from the Wisconsin Supreme Court, their gamesmanship may continue.

Christensen v. Sullivan, 2009 WI 87 (July 21, 2009), concerned a 2006 order of the Milwaukee County Circuit Court on a motion for monetary damages as a remedial sanction for the county's repeated violations of a consent decree involving the Milwaukee County Jail

The issue was whether the circuit court was required to order monetary damages for certain members of the class who were inmates at the jail as a remedial sanction against the defendants for their repeated violations of the consent decree, when there was no dispute that the violations had ceased.

The Supreme Court held, in a 4-3 decision written by Justice David T. Prosser Jr., that because breaches of the consent decree had ceased before the action for contempt was filed, the circuit court was correct in refusing to impose a remedial sanction against the defendants for their past contempt.

The high court relied heavily on Frisch v. Heinrichs, 2007 WI 102, a family law case. Frisch outlined on a concept called continuing contempt. In Christensen, the justices held there was no continuing contempt because the violations had been corrected before the contempt action was filed.

In the family law context, this raises the issue of whether there is continuing contempt if a payor of support pays the arrearages before a contempt action is filed, but does not pay any costs incurred as a result of the delinquent payments, such as attorney fees. Since remedial contempt sanctions can only be applied if the contempt is continuing, what happens if the violation of the court order has ceased, but the harm caused by it has not been remedied?

No crackdown on the contumacious

The issue is significant in family law (which is why the State Bar Family Law Section and/or the American Academy of Matrimonial Lawyers should have filed an amicus brief in this appeal), because if there is no continuing contempt once back support is paid, a payor could cause substantial costs to be incurred without any practical remedy.

A manipulative payor, a/k/a a contumacious party per Chief Justice Shirley S. Abrahamson's dissent, could run up arrears and then pay them before a contempt action was filed - or heard. It is highly unlikely that any district attorney would initiate punitive contempt proceedings against a payor...