Friday, August 2, 2013

Divorce Contempt Actions: Pre and Post Decree


Motion To Show Cause/Contempt

A “Motion to Show Cause” why a party should not be held in contempt of court shall state with specificity each provision of a prior court order with which a party allegedly has failed to comply, the date of such order, and the facts constituting the noncompliance. The motion shall be supported by an Affidavit signed by the party bringing the action. Show cause motions may be filed during pre decree divorce proceedings or post decree. The Ohio Revised Code sets out:

2705.02 Acts in contempt of court.

A person guilty of any of the following acts may be punished as for a contempt:

(A)  Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or officer…

The moving party (movant) must show failure of compliance with a valid court order. Proof of willful, purposeful or intentional noncompliance with a court order is not prerequisite to a finding of civil contempt. The trier of fact (Judge, Magistrate) will determine a finding of contempt based on clear and convincing evidence producing a firm belief or conviction regarding the facts to be established.
Once a prima facie case of contempt (sufficient evidence exists to support the case) is established by the movant, the contemnor (party held in contempt) has the burden of proving the defense of their inability to comply with the court order.

Defenses
An alleged contemnor makes a showing that they substantially complied with the order. Substantial compliance is grounded in evidence that one has taken all reasonable steps to comply with the court order(s) subject to a show cause motion. When one has exercised reasonable diligence and effort to comply with the order, “all reasonable steps”, a finding of substantial compliance may result.

An alleged contemnor has a viable defense when punishing noncompliance with the order would constitute punishing a nullity (holding a person in contempt for noncompliance with something null and void, with no force or effect).
Example: A decree of divorce often orders a party to convey a property by quitclaim deed, but, also provides that if the party fails to convey the rights to the property, the order of the court shall constitute and operate as such conveyance. A finding of contempt based on the requirement of a party signing and conveying a quitclaim deed would be punishing a nullity. In such a case, the quitclaim deed and the decree of divorce both have the same functions under Ohio law.

Presumptively, one should not conclude they are released by the decree conveyance language from their obligation to provide the signed quitclaim deed as ordered, but, if circumstances make timely compliance problematic (overseas transfer, deployment), alleged noncompliance may be regarded as a nullity, as the decree constitutes and operates as the instrument of conveyance.
When a person alleges contempt in a show cause motion and the person defending against the action can show the motion to be grounded in an improper purpose, such as, obviously serving merely to harass or maliciously injure the other party, the injured party can seek damages and sanctions. At times, it may appear a Show Cause motion is brought by a movant with unclean hands and in bad faith. Great caution and diligence must be exercised before pursing this option. See:


The above information is not offered as, and does not constitute, legal advice. The information presumes you are not currently represented by an attorney who knows your specific circumstances.

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