Part XXXV Contempt Motions Continued Contempt Motions Continued

• Jurisdiction: New York

Part XXXV — Contempt
Motions Continued

In the last issue, the Legal Writer discussed moving for civil contempt. We also began a discussion about opposing civil contempt: your defenses to a civil-contempt motion. In this issue, we continue our discussion of civil-contempt motions.

Opposing Civil Contempt, Continued

Appealed Orders and Reversals

If you disagree with the court’s order, move to renew, reargue, or both.

If you don’t prevail on your motion to renew or reargue, obtain a stay and appeal.

It is no defense to civil contempt that you appealed the court’s order when you disobeyed it.¹⁵³⁰ If you didn’t get an appellate stay of the order, “the requirement of obedience is the same as though no appeal was taken at all.”¹⁵³¹ To oppose civil contempt, tell the motion court, if accurate, that you’ve appealed the court’s initial order and obtained a stay pending the appeal.

On appeal, the court’s order “may be reversed for any number of reasons other than voidness or jurisdiction.”¹⁵³² Civil contempt, unlike criminal contempt, “always depends upon the legality and authority of the court to issue the order in the first instance,”¹⁵³³ including orders in which the court had no jurisdiction (personal or subject matter) or in which the court’s order was void on its face, transparently invalid, or frivolous.¹⁵³⁴ In a civil-contempt proceeding, a court may consider “the propriety of the order violated.”¹⁵³⁵ The “[p]unishment for civil contempt . . . is cancelled” when an appellate court determines that the lower court’s order shouldn’t have been issued.¹⁵³⁶

A court might hold you in civil contempt if you didn’t appeal the court’s order and instead chose to disobey it. If you appeal the civil-contempt adjudication, you can’t revive your “abandoned challenges” to the court’s initial order.¹⁵³⁷ Your appellate right to challenge the court’s initial order ended when you failed to appeal. You’re barred from collaterally attacking the court’s initial order on an appeal of a civil-contempt adjudication. This is the collateral-bar rule.

The Court’s Adjudication of Civil Contempt

To determine whether a civil-contempt adjudication is appropriate, the motion court will consider the parties’ moving papers, opposition papers, and reply papers. The procedure is different for summary contempt.¹⁵³⁸

Before a court holds you in civil contempt, the court needn’t hold an evidentiary hearing with testimony and exhibits.¹⁵³⁹ Due process — notice and an opportunity to be heard — is the only requirement.¹⁵⁴⁰

The court will hold an evidentiary hearing only if factual disputes prevent the court from determining, on the papers alone, whether to adjudicate the alleged contemnor in civil contempt. At the hearing, alleged contemnors may testify, call witnesses, confront and cross-examine their adversary’s witnesses, and introduce exhibits into evidence. Alleged contemnors may bring counsel to assist in their defense. In its discretion, the court may assign counsel.¹⁵⁴¹

Civil contempt is appropriate when “obedience is reasonably perceived not to be within the capability of the contemnor.”¹⁵⁴²

The court’s civil-contempt adjudication must be in writing: “No appellate review of a contempt adjudication and punishment is possible unless it has been reduced to writing.”¹⁵⁴³ If it’s not in writing, the contempt adjudication has no legal force and effect.¹⁵⁴⁴ The court must specify in a written order the facts of and the punishment for the contempt adjudication.¹⁵⁴⁵ A court’s conclusory findings aren’t enough.¹⁵⁴⁶ If the court doesn’t specify that its adjudication is for criminal contempt or doesn’t find that the contemnor willfully — intentionally — disobeyed an order, the court’s adjudication will be for civil contempt, not criminal contempt.¹⁵⁴⁷

The court’s order must “recite that the contemptuous conduct was calculated to or actually did defeat, impair or prejudice the rights of the other party.”¹⁵⁴⁸ Under Judiciary Law §§ 753 and 770, a party may not be held in contempt without this recitation in the court’s contempt order.¹⁵⁴⁹

A court’s contempt adjudication may be conditional. The court may impose contempt unless the contemnor does something specific within a specified time.¹⁵⁵⁰ A court that imposes a condition on the contemnor gives the contemnor a chance to purge the contempt.¹⁵⁵¹ (The Legal Writer discusses purging contempt below.)

A court may adjudicate you in civil contempt for failing to make payments under a matrimonial judgment. Consult Domestic Relations Law §§ 243-244 and CPLR 5242.

The Punishment for Civil Contempt

Even though criminal contempt sounds more severe than civil contempt, the punishment for civil contempt can be harsher than for criminal contempt. The punishment for civil contempt is a fine, jail, or both. But the fine or jail term for civil contempt isn’t as restrictive as it is for criminal contempt.

The court may not hold in abeyance the determination of the contemnor’s punishment.¹⁵⁵²

The fine for civil contempt may be “any sum that will indemnify the injured party [aggrieved party] for the actual loss caused by the contempt.”¹⁵⁵³ The fine goes to the aggrieved party.¹⁵⁵⁴

A fine is meant to compensate the aggrieved party. The fine must be remedial, not punitive; the fine may not include punitive damages.¹⁵⁵⁵ The aggrieved party must prove the damages. Civil contempt also “serves functions such as indemnity.”¹⁵⁵⁶ If a party demonstrates actual loss or injury, a court may impose a fine to indemnify the aggrieved party.¹⁵⁵⁷ The court may order the contemnor “to repair whatever damage [the contemnor] has caused.”¹⁵⁵⁸ The court may also award reasonable attorney fees.¹⁵⁵⁹

The court may award costs, attorney fees, and $250 to an aggrieved party who doesn’t prove damages.¹⁵⁶⁰

Imposing a jail term for Judiciary Law civil contempt has some complicated nuances.

If the court’s mandate “calls for the doing of an act which the contemnor still has the power to do,”¹⁵⁶¹ contemnors may be jailed until they do the act or until they pay the fine imposed, or both. The court’s order (and the warrant of commitment, if the court issues one) must specify the act or duty to be performed and the sum to be paid.¹⁵⁶² The Judiciary Law’s language implies that the contemnor’s jail term might be unlimited unless the contemnor performs the act mandated in the court’s order.¹⁵⁶³ Contemnors thus “hold[] the key to [their] own jail cell.”¹⁵⁶⁴ A contemnor who performs the act may “not be imprisoned for the fine imposed more than three months if the fine is less than five hundred dollars, or more than six months if the fine is five hundred dollars or more.”¹⁵⁶⁵

A court may impose a jail term on the contemnor “in every other case, where special provision is not otherwise made by law, . . . for a reasonable time, not exceeding six months, and until the fine, if any, is paid.”¹⁵⁶⁶ The court’s order (and the warrant of commitment, if the court issues one) must specify the amount of the fine and the duration of the imprisonment. The six-month jail limit is for civil-contempt cases involving “the doing of a forbidden act which now can’t be undone, or for some other past recalcitrance.¹⁵⁶⁷ (For criminal contempt, the court may imprison a contemnor for up to 30 days.)

If the court doesn’t specify the term of imprisonment in its order, the contemnor “shall be imprisoned for the fine imposed three months if the fine is less than five hundred dollars, and six months if the fine imposed is five hundred dollars or more.”¹⁵⁶⁸ If the court provides “a specified term of imprisonment [in its order] and . . . to pay a fine, [the contemnor] shall not be imprisoned for the nonpayment of such fine for more than three months if such fine is less than five hundred dollars or more than six months if the fine imposed is five hundred dollars or more in addition to the specified time of imprisonment.”¹⁵⁶⁹

A court that imposed on the contemnor a jail term exceeding three months must review the jailing at intervals of not more than 90 days.¹⁵⁷⁰

The Appellate Division, First Department, has called the sentencing scheme for civil contempt under the Judiciary Law “aberrant” and “extraordinary.”¹⁵⁷¹ Contemnors might argue that this sentencing scheme is unconstitutional given its punitive purpose and given that the burden of proof in civil contempt — clear and convincing, sometimes referred to as “reasonably certain” — is lower than the burden of proof for criminal contempt: beyond a reasonable doubt.¹⁵⁷²

A court may, in its discretion, refrain from punishing the contemnor who can’t endure imprisonment, isn’t able to pay, or can’t perform the act or duty the court required.¹⁵⁷³

The court may impose consecutive or concurrent sentences.¹⁵⁷⁴

In determining the punishment for civil contempt, a court must be mindful that its jail term or fine, or both, not be punitive.

Review of Civil-Contempt Adjudication

Seek a review of a civil-contempt adjudication “either by direct appeal or [by commencing] a CPLR Article 78 proceeding in the nature of certiorari.”¹⁵⁷⁵

Appealing a plenary-contempt adjudication is typically done by direct appeal.

A summary-contempt adjudication is typically reviewable on a CPLR Article 78 proceeding¹⁵⁷⁶ if the adjudication record is too incomplete to allow a direct appeal. If the record is complete, appeal directly.

Summary-civil-contempt adjudications brought on by motion or order to show cause usually contain a complete record and therefore allow a direct appeal.

Bring the Article 78 proceeding in the Appellate Division if you’re seeking to review a court’s contempt order from Supreme Court, Surrogate’s Court, Family Court, County Court, or Court of Claims. Bring the Article 78 proceeding in the state’s Supreme Court if you’re seeking to review a lower court’s contempt order.

If the contempt is committed outside the court’s presence and the court’s adjudication of civil contempt occurs after...