Your divorce decree, dissolution decree, or parenting order is the “private law” governing the interactions between you and your ex-partner or ex-spouse. These legal binding agreements dictate the terms of parenting allocation, property division, spousal support, and more. Unfortunately, you may find yourself in a situation where the opposing party fails to comply with these court-ordered terms. If that is the case, you may consider filing a motion to hold that person in contempt of court.
Contempt of Court in Ohio
In the movies, judges often bang their gavel and roar “You’re in contempt!” at a disruptive person in the courtroom, who is then hauled off to jail for a few days to think about what they’ve done. As satisfying as it might be to picture that happening to your ex-partner, the reality of being in contempt of court in a family law case is a little different.
In Ohio, contempt of court may be civil or criminal. Most of the contempt cases we see in family law matters are civil. Civil contempt is generally intended to force the opposing party to comply with the orders of the agreement or order. On the other hand, holding someone in criminal contempt is a much more serious action. This is generally intended to uphold the authority of the court through punishment, such as jail time, and there are due process considerations that must be observed.
Under Ohio law, contempt is “a disregard of, or disobedience to, the orders or commands of judicial authority.” Indirect contempt can include disobedience of or resistance to a lawful order or judgment. It is not required that the disobedience be willful or intentional. Cases have held that it is irrelevant whether the person violating the order intended to do so, and merely disobeying an order is sufficient to be held in contempt. That said, if you are able to document that the other party was intentionally violating the court’s order, you should provide that documentation to your attorney.
How Do You Prove Contempt in a Family Law Case?
In order for someone to be found in contempt of court in an Ohio family court matter, it must be proven that he or she violated an order of the court. Let’s say you wanted to have your ex-spouse or ex-partner held in contempt for not making your kids available for scheduled parenting time. You would have to show that:
- Your ex-spouse was aware of the order;
- Your ex-spouse was able to comply with the order;
- Your ex-spouse did not have a valid excuse for his or her failure to comply.
Note that we said that you would have to show these things. That is because the burden of proof is on the person alleging contempt. In other words, you must prove that your ex-spouse or ex-partner violated the order, rather than making an allegation of contempt and forcing the other side to prove that the allegation was not true.
Impossibility is a defense to contempt. If there was a huge snowstorm and the parent could not travel to the other parent’s home on time, such would not be contempt. A person claiming a valid excuse for disobedience to a court order bears the burden of showing that excuse was legitimate.
It can be tempting to file a motion with the court to hold your ex-partner in contempt, but that probably should not be your first move. Your goal is compliance with the order, not getting your ex-partner in trouble. Accordingly, it is best if you can document that you tried every possible avenue to get your ex to comply before involving the court. You can do this by showing copies of texts, emails, and letters you sent requesting compliance, as well as a letter from your attorney informing your ex-spouse that the only remaining option would be enlisting the court’s help to enforce the order.
The Process of Filing for Contempt
First and foremost, review your court order to be certain that your ex-spouse is clearly violating a provision. Consult with your attorney to get his or her perspective on whether the violation is significant enough that the court will find it worth addressing, and that you actually have a good chance of proving your case. Your attorney can prepare and file the motion, and arrange for your ex-spouse to be served with notice of the motion and the hearing date.
The motion explains to the court what the order that has been violated states, and how the other party is violating the order. The motion asks the court to order the other party to appear in court and show cause why he or she should not be punished for disobeying the court’s order. The Order to Show Cause is almost always granted upon motion, and commands the other party to appear in court at the specified date and time.
The contempt motion must be accompanied by an affidavit (sworn statement) that explains in detail how the other party failed to follow the court’s orders. Keeping documentation of violations as they happen will help when it comes time to prepare the affidavit.
If the court finds evidence that your ex-spouse or ex-partner violated the court’s order, the consequence will probably be geared at remedying the violation. If the violation was withholding parenting time, for instance, the court might order make-up parenting time. It is unlikely that your ex-spouse will be given jail time unless the violation was especially serious or flagrant, or a repeated offense. The Court normally will sentence a person to a few days in jail and give them an opportunity to purge (erase) the contempt by doing certain things, such as make-up parenting time, payment of attorney fees, or some other monetary sanction. The court may then set a purge hearing date when the person found to be in contempt must show compliance with the purge conditions when the sanction will be erased. If the purge conditions have not been met, the court can then execute upon the sentence and send the person to jail, and can extend the purge period. The court may order your ex to pay your attorney fees and court costs that were necessary to make him or her comply with the court’s order after a finding of contempt.
If you have questions about filing a motion for contempt of court in your family law case (or defending one), please contact Melissa Graham-Hurd and Associates to schedule a consultation.