By: Stephen J. Plog
In many Colorado divorce and child custody cases, it’s not uncommon to see situations in which one party or the other fails to follow the court’s orders, whether financial or child related in nature. When orders are not followed, the aggrieved party is left with various remedies to consider, one of which is filing a motion and affidavit for contempt of court pursuant to Colorado Rules of Civil Procedure Rule 107.
The filing of a motion for contempt of court essentially entails setting forth allegations within the motion alleging that there are court orders in place, that the other party is aware of the court orders, that the other party has failed to follow those court orders, and that that party had/has the ability to follow the relevant, violated court orders. Once filed, the court will give the contempt motion a prima facia review, after which it will normally issue a citation instructing the violating party to appear in court, at a certain time, to answer as to the allegations. The initial hearing is generally for advisement purposes, at which time the accused will plead guilty or not guilty. If “not guilty” is the plea then an evidentiary hearing will be set, to take place a few weeks, or months, down the road.
When dealing with contempt of court, there are two avenues the party bringing the motion may pursue in terms of relief: punitive or remedial sanctions. With punitive sanctions, the motion must be proved “beyond a reasonable doubt,” which is the same as the standard in a criminal case. With remedial sanctions, the allegations must be proved based on a “preponderance of the evidence,” which basically means a tipping of the evidentiary scales in favor of the accuser as to those allegations. With punitive contempt, the end result of a finding of guilt could be a fine, jail time (up to 180 days), or both. With remedial contempt, the end result upon a finding of guilt could be a remedial order correcting the grievances alleged or a remedial order requiring the violating party to correct the situation, or else. With remedial contempt, the court can also issue a fine or a jail sentence, to run until the violation is corrected. A contempt motion may seek both remedial and punitive sanctions, at the same time, which is the stance I prefer, presuming there are grounds to seek both outcomes.
One of the most significant distinctions between remedial and punitive contempt actions is that attorney fees may be sought with remedial contempt, but not punitive. Between the drafting of pleadings, personal service of the motion and citation, appearing for the advisement, preparation for the evidentiary hearing, and conducting the evidentiary hearing, the cost of bringing a contempt action could be several thousand dollars. As such, one of the first things I have to advise clients is to think about what their goals are and what they truly hope to gain from going through the process. I also have to advise them to do their own cost benefit analysis to determine whether it is worth it to proceed, or to proceed at this time.
It should be noted that in some cases there is no option but to file the contempt of court motion right away, leaving little or no time to wait to file, whether based on strategic or financial considerations. Though not often, these cases can arise, such as might relate to a parent’s behavior causing emotional harm or stress to the children contrary to terms of an already existing order.
When conducting the cost-benefit analysis, one of the first steps is determining whether the violation of the court orders is one that can be remedied. If the violation is such that realistically only a punitive sanction will apply, the aggrieved party must determine whether proceeding, knowing punishment, but not fees may follow, is worth it. In some cases, and with some people, it is. Long patterns of repeated violations my lead some people to the boiling point, at which they feel they have to act. Sometimes, one might proceed with a punitive contempt motion solely to send a message. I am a big fan of sending messages in the more egregious cases, ones in which the other party systematically and repeatedly makes things difficult and just ignores the court’s orders, seemingly over and over again. Sending the message that if you keep violating orders you will potentially go to jail can be powerful deterrent, which may ultimately save headache and money down the road. I have seen instances, over the years, in which the violating party is magically rehabilitated and no longer a problem, all because he or she was sent the message that my client was no longer messing around and that he or she would meet violations of court orders with swift and severe actions. The fear of jail is a powerful tool. Actually going to jail is even more so.
In most instances, remedial contempt and sanctions will be appropriate. One key factor is making sure that you can articulate a rational and viable remedy in your motion. If so, and presuming a finding of guilt, the norm would be for the court to award your attorney fees and costs. However, C.R.C.P. Rule 107 does not make an award of attorney fees automatic. Rather, the issue of fees is left up to the judge’s discretion. When dealing with remedial contempt, it’s important to assess the severity of the violations and the likelihood of the court finding them significant enough to warrant an award of fees. I have seen remedial contempt motions brought over things such as not returning the kids’ clothes with parenting time exchanges or perhaps one parent repeatedly being five minutes late in allowing the other parent to have his or her court-ordered nightly phone call. I have seen findings of contempt/guilt in those cases. I have also seen judges award either $0 or a tiny amount of fees, with the purpose of sending the message that the contempt was trivial in nature and not worth the court’s time. If one likens a contempt of court action to a quasi-criminal case, it only makes sense that a court is not going to send someone to prison for a $50 speeding ticket or award thousands of dollars in fees for that same ticket.
Aside from the court’s time, you must consider your own time and outlay of funds initially, which may take months to recoup. If the other party is behind on paying his or her share of few hundred dollars of medical bills, or signing a document, you might consider waiting until the monetary amount grows or the time period increases. You might consider waiting in some instances to build enough evidence of the purposeful nature of the violations. You might wait to file in some instances until more provable violations can occur such that a court is more inclined to hand out a more severe penalty or award fees. You should also consider the hours of preparation or time away from work, or kids, to pursue your contempt motion. At times, it just makes more sense to wait until the monetary amount of the violation is bigger. Each case is different and the ultimate decision of the value of filing for contempt, and when, is up to the client.
Of course no one wants to sit back and let the other party continue to just thumb their nose at court orders. However, stepping back, employing a little patience, and waiting for a time which makes financial and strategic sense to file your contempt motion may ultimately lead to a more meaningful result, both financially and in a corrective or preventative sense.
If you are pondering filing a motion for contempt of court, it’s advisable to meet with a family law attorney to discuss your situation, potential outcomes, and whether it’s worth it to file at this time. Finally, it should be noted that you do not have to have an attorney to file a motion for contempt of court. If you plan on doing it on your own, your only tangible cost is your time, but not the money you would otherwise expend on a lawyer.