Order to Show Cause for Contempt in California Family Law proceedings, part one

Order to Show Cause for Contempt in California Family Law proceedings, part one

The topic of this blog post is the filing of an order to show cause for contempt in a California family law proceeding.  This is part one of the blog post series on contempt in California family law proceedings.

Under California law a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties. Code of Civil Procedure §§ 1218 & 1219.  As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders.

In California a contempt proceeding in a family law case is initiated by the filing of an Order to Show Cause and Affidavit for Contempt with the Court to obtain a hearing date. The person who is alleged to be in contempt must be personally served with the Order to Show Cause and Affidavit for Contempt at least 16 Court days before the hearing.

Family law orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guaranty against imprisonment for nonpayment of “debt” U.S. Const., Amend. XIII; Ca Const. Art. I, § 10. However, an order or judgment is not a “debt” within the meaning of the constitutional guaranty against imprisonment for “debt” simply because it requires the payment of money. As discussed below, most (but not all) family law orders and judgments are deemed based on a law-imposed obligation (not “money judgments in civil actions for debts”) and thus are enforceable by the court’s contempt power.

Child, spousal and family support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are not money judgments in civil actions for the payment of a “debt” within the meaning of the constitutional guaranty against imprisonment for debt and thus clearly are enforceable by contempt.

Child custody and visitation orders do not impose a “debt” obligation. Thus, e.g., the court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an injunction restraining relocation with the children.

Need-based attorney fees and costs are awardable by statute in marital proceedings. Family Code §§ 2030/2032. The award is based on a law-imposed obligation (not arising out of a money judgment for a “debt”) and thus is enforceable by contempt.

A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt. The obligation is “law-imposed” (not a “debt”) because based on the parties’ statutory right to an equal division of community property upon termination of marital status. See Family Code § 2550 et seq.

The court may properly invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding. Penal Code § 273.6 misdemeanor penalty for intentional and knowing violation of Family Code § 6218 protective orders.A spouse who has complied with the statutory “declaration of disclosure” requirements in marriage dissolution proceedings Family Code § 2100 et seq. has various statutory remedies against the other spouse who has failed to comply. One such remedy is a motion to compel a further response Family Code § 2107(b)(1)). If the noncomplying spouse fails to file a sufficient response, the complying spouse may seek monetary sanctions “in addition to any other remedy provided by law”. Family Code § 2107(c).

The contempt remedy for noncompliance with a court order made under the Family Code is subject to a statute of limitations.  Code of Civil Procedure § 1218.5.

For an alleged failure to pay child, family or spousal support, the contempt action must be commenced no later than three years from the date the payment was due.

A contempt cause of action for nonpayment of support may be broken down into separate “counts” for each month payment was not made in full. Thus, the fact the obligor stopped (or fell short in) payments over three years ago is not fatal to a contempt remedy: Each month within the three-year period for which payments were in default is separately punishable as separate counts of contempt.

A contempt action to enforce any other order made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.”

In California a contempt proceeding in a family law case is initiated by the filing of an Order to  Show Cause and Affidavit for Contempt with the Court.  The person alleged to be in contempt (“citee”) is then served with a copy of the Order to  Show Cause and Affidavit for Contempt.

The facts constituting the contempt must be alleged by an “affidavit of facts,” setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt as discussed below.  Code of Civil Procedure § 1211(a).

However, a deficient charging affidavit may be amended at any stage of the proceeding. And, if there is no objection to the sufficiency of the charging affidavit, jurisdiction to adjudicate contempt may be established by facts proved at the contempt hearing (in which case, the court “shall cause the affidavit or statement to be amended to conform to proof”).

The citee must be formally notified of the charge and of the time and place for the court hearing on the charge. Service of the notice must be effected in a manner authorized for service of summons; an OSC re Contempt is not properly served by the more liberal Code of Civil Procedure § 1010 et seq. methods for service of motions or OSCs generally. Code of Civil Procedure § 1016;  Family Code § 215.

Unlike ordinary motion and OSC proceedings, contempt cannot be decided on the moving and responding papers alone. The citee is entitled to a formal hearing as a matter of right and must be allowed to testify, to call and cross-examine witnesses, and to introduce evidence in defense of the charge. Code of Civil Procedure § 1217.

Contempt citees clearly have a due process right to be represented by an attorney they have retained for that purpose.  Additionally, where the potential penalty includes a jail sentence, an indigent citee has the due process right to court-appointed counsel at county expense.

The citee must be afforded the testimonial privileges of a criminally accused: He or she is entitled to exercise the privilege not to be called as a witness, and can decline to answer specific questions, claiming the privilege against self-incrimination. These privileges are not waived by filing an answer to the charging declaration.

As a general rule, the citee also has the same rights as a criminally accused to proof of a prima facie contempt case by competent evidence beyond a reasonable doubt. The contempt must be discharged if the charging party fails to carry this burden on each element of the prima facie case.

The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial for all “serious” criminal contempts such as when the contempt is punishable by more than six months’ imprisonment.

The right to a jury trial under the California constitution is broader: It extends to all criminal prosecutions above an “infraction.” Thus, there is a right to jury trial in criminal contempt proceedings that carry a maximum penalty comparable to a felony or misdemeanor (six months’ imprisonment plus $1,000 fine) regardless of what the Legislature has labeled the offense.

However, there is no right to jury trial where the court invokes its general summary contempt power under Code of Civil Procedure § 1209 and imposes only a maximum five-day sentence and/or $1,000 fine. Code of Civil Procedure § 1218(a). That punishment is not akin to a misdemeanor penalty and thus does not trigger the state constitutional jury trial provision.

If the court proceeds to trial on contempt charges without a jury, and the citee has not expressly waived the right to a jury, the maximum sentence that may be imposed is 180 days (six months). A longer sentence in violation of the jury trial right will not invalidate the contempt conviction or require retrial by jury; but the court must reduce the sentence to six months or less.

The elements or facts generally necessary to establish a prima facie contempt of a family law order are: (1) rendition of a valid order; (2) the citee’s knowledge of the order; and (3) the citee’s willful disobedience of the order.

A contempt adjudication cannot stand if the underlying order is invalid. The charging affidavit must identify the underlying order by date of entry and type. For purposes of sustaining a prima facie case, the court can presume validity unless the order is void on its face; the citee thus normally bears the burden of showing invalidity, either as an affirmative defense in the answer or by motion to discharge the contempt citation.

Part two of this blog post will discuss the remaining issues that will be decided at any contempt hearing.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

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