Order to Show Cause for Contempt in California Family Law proceedings, part two
This blog post is part two of the series which discusses the filing of an order to show cause for contempt in a California family law proceeding, including the remaining issues that will be decided at any contempt hearing.
The charging affidavit in support of the order to show cause for contempt must set forth facts showing the citee’s notice or knowledge of the underlying order as this is a a jurisdictional prerequisite to a valid contempt adjudication.
Knowledge can be shown by personal service of a copy of the order, the citee’s presence in court when the order was made, the citee’s signature on a stipulation upon which the order was based, or proof that the citee previously sought relief related to the order such as a modification.
To complete a prima facie case of contempt, the charging party must allege facts showing the citee’s willful disobedience of the underlying order.
In making a family law support or attorney fees/costs order, the family court necessarily must determine the obligor’s ability to pay. Since the court has already determined the obligor’s ability to pay the underlying order, present ability to pay is not an element of a prima facie contempt case predicated on nonpayment. Rather, inability to pay is an affirmative defense that must be proved by the citee.
A custodial parent can be held in contempt of a visitation order only when he or she has sufficient control over the child so as to have the ability to make the child available for visitation. This is a fact question in each case. A parent probably has sufficient control over minor children of “tender years” to compel them to visit with the other parent; failure to make such children available for visitation probably would be punishable as contempt. But the result may be otherwise when the children get older and it becomes more difficult to exert parental “control.” If a teenage child refuses to visit with the noncustodial parent, through no fault of the custodial parent, the custodial parent lacks the ability to comply with the order and cannot be held in contempt; in these cases, the noncustodial parent is probably left without a remedy.
The citee may answer the charge, admitting or denying it, or may move for a discharge without answering. In response to the contempt charge, and before the hearing, the citee can file an opposing affidavit or declaration under penalty of perjury, questioning the adequacy of the moving party’s charging affidavit or raising a sufficient “excuse or justification” in defense. The opposing affidavit together with the charging affidavit frame the issues to be tried in the proceeding.
Contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not “wilful” because the citee lacked the ability to comply. The citee does not meet this burden, however, with conclusory declarations. He or she must set forth evidentiary facts showing why complete performance was impossible. Moreover, default under the order will not be excused if the responding allegations disclose that the inability to comply was self-imposed for the purpose of avoiding compliance.
Note also that disobedience of a lawful court order is not excused by the fact the citee was acting on advice of counsel. Moreover, attorneys who encourage such defiance can be held in contempt themselves for their own recalcitrant conduct.
In lieu of an answer, the citee can move for a discharge of the contempt citation on the following grounds:
The charging affidavit does not make out a prima facie case of contempt.
The order expired before the alleged violation. But if the order was in effect at the time of the violation, discharge will not be granted simply because it has expired or been superseded at the time of the contempt proceedings.
The same charge was previously made on the same facts and the citee was discharged on the merits.
Normally, either the citee or his or her attorney must appear at the hearing; and, if neither appears, a bench warrant can issue to secure their presence. But it is error for the court to proceed in the absence of the alleged contemnor or his or her attorney, unless it finds the OSC and Affidavit for Contempt forms were validly served and the failure to appear was voluntary.
The charging and opposing affidavits are hearsay and thus inadmissible over objection. Evidence Code §§ 1200(a),(b).
The penalties upon a contempt adjudication are prescribed by Code of Civil Procedure §§ 1218 and 1219.
Upon a contempt adjudication for failure to comply with a court order made under the Family Code, the court “shall order” community service and/or imprisonment as prescribed by Code of Civil Procedure § 1218(c).
Upon a first finding of contempt, the party found in contempt (“contemnor”) must be ordered to perform community service of up to 120 hours, or to be imprisoned up to 120 hours (five days), for each count of contempt.
Upon a second finding of contempt, the contemnor must be ordered to perform up to 120 hours of community service, in addition to imprisonment of up to 120 hours (five days), for each count of contempt.
Upon the third or any subsequent finding of contempt, the contemnor must be imprisoned for up to 240 hours (10 days) and be ordered to perform up to 240 hours of community service, for each count of contempt.
The contemnor must also be ordered to pay an “administrative fee,” not exceeding the “actual cost” of the contemnor’s administration and supervision, while assigned to a community service program.
With regard to child, family or spousal support contempts, each month in which there was a default may be alleged as a separate count of contempt and punishment imposed for each count proved. This provision means that each count alleged in one charging affidavit may result in one “finding of contempt”; but that the specified community service and imprisonment penalties may be aggregated for each of the counts proved.
As an example: One charging affidavit alleges five months’ default in support payments, each as a separate count. If the citee has not yet been adjudicated in contempt of a Family Code order, proof of each count in a single proceeding will amount to a “first finding of contempt” under Code of Civil Procedure § 1218(c)(1); but the citee may be ordered to perform up to 600 hours of community service or be imprisoned for up to 600 hours (25 days).
In addition to the fine, community service and imprisonment penalties discussed above, a party (or party’s agent) found in contempt for violating a court order “may” be ordered to pay the charging party’s reasonable attorney fees and costs incurred in connection with the contempt proceeding. Code of Civil Procedure § 1218(a).
The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.
