A person who violates a court order involving custody, child support, visitation, alimony and other family law issues can be found in contempt of court and face jail time for such a violation. A couple of North Carolina cases have highlighted and addressed these issues.

Baines v. Baines (2013)

In Baines v. Baines, the North Carolina Court of Appeals established that a mother could be held in contempt of court for refusing to allow her daughter’s father (her ex-husband) visitation when she feared for her daughter’s safety.

Thomas and Kimberly Baines were married in 1994, had a child named Jessica in 2003, and divorced in 2005. In 2007, Thomas and Kimberly entered into a consent order granting Kimberly sole custody of Jessica and allowing Thomas visitation on alternate weekends, as well as one day per week. A provision involving dispute resolution between the parents via a parenting coordinator was also included in the consent order.

In August 2011, Thomas’ brother, Andy, came to live with him. Andy had a history of drug abuse, as well as a criminal record that included activities related to his drug addiction. When Andy came to live with his brother, he was on probation, and violated it around September or October of 2011. Andy was later released and returned to live with Thomas a month or so later.

Kimberly was aware of Andy’s drug addiction prior to her marriage to Thomas, and she was aware of Andy’s living arrangement with his brother, and did not object to it. Yet, in December of 2011, Kimberly contacted the parenting coordinator and expressed concerns about Andy. The parenting coordinator notified Thomas of Kimberly’s concerns, but Thomas saw no issue with Andy’s presence in the home as it related to his daughter.

Thomas later filed a motion asking the court for Kimberly to show cause as to why she shouldn’t be held in contempt for violating their consent order. Simultaneously, Kimberly sought to modify the order, claiming Thomas had created a dangerous environment for the child by allowing his brother to live at his home.

At the hearing, Kimberly was found in contempt of court because she violated the consent order, and she was not permitted to modify the consent order. Additionally, the court ordered Kimberly to pay Thomas’ attorney’s fees in the amount of $4,500, which Kimberly appealed. Kimberly alleged that her acts were not willful, because her motivations revolved around protecting her child from a dangerous situation. The Court of Appeals did not agree.

The Court of Appeals acknowledged that for a person to be held in contempt, they must willfully violate a court order. The court went on to define “willful” as “disobedience which imports knowledge and a stubborn resistance,” and as “something more than an intention to do a thing.” The implication revolves around a person acting deliberately and purposely without authority to do so. The Court of Appeals noted that Baines and Hancock cases were not the same. In Hancock, the mother encouraged and persuaded her son to visit with his father, in accordance with the visitation schedule. The mother did everything in her power short of physical force to persuade the child to go, but he simply refused. However, in Baines, Kimberly had the ability to let Jessica visit her father, Thomas, but decided not to. Kimberly argued that she did not make a conscious decision to disobey the order since her primary concern was her daughter’s safety. However, the Court of Appeals did not agree with such reasoning.

Kimberly also argued that she had not acted in bad faith, thus, she should not be held in contempt. The facts indicated that Kimberly did speak with the parenting coordinator about the situation before refusing to comply with the consent order. However, the Court of Appeals, again, did not agree with such reasoning.

Lastly, Kimberly claimed the District Court erred in awarding Thomas attorney’s fees. Kimberly claimed the District Court failed to make a finding of good faith on Thomas’ behalf in bringing the motion. Additionally, she argued that Thomas had the ability to pay his own legal fees and expenses. As to this argument, the Court of Appeals agreed with Kimberly. The court noted that in North Carolina, the law states that attorney’s fees may be awarded in custody cases at the discretion of the court when: (1) a party acts in good faith, and (2) has the inability to pay such fees. While the District Court found Thomas acted in good faith, which the Court of Appeals agreed, there was no evidence to support the conclusion that Thomas was unable to pay his legal expenses.

Watson v. Watson

In Watson, a man’s former wife was held in contempt for violating an equitable distribution consent order, because she refused to assume responsibility for credit card debt and sign tax forms. In 2003, Robert Watson filed suit against former wife, Gayle Watson, seeking equitable distribution of the couple’s marital property. In 2005, the couple entered into a consent order, which required Gayle to deliver documents needed for filing tax returns to Robert’s CPA. Gayle was to sign the returns, assumed the responsibility for certain financial obligations, and the two were to transfer to their own names certain debts and credit cards. In 2005, Robert filed a contempt motion against Gayle, and Gayle was found in contempt of court, and sent to jail until she complied with the terms of the order. The court informed Gayle that she could avoid going to jail if she did the following: (1) removed Robert from her debts; (2) sent the consent order major credit reporting agencies; (3) acknowledged her responsibility for the debts; (4) delivered the 2002 and 2003 tax documents to Robert’s CPA; (4) appeared in court with her separate tax returns; and (5) appeared in court with completed returned prepared by Robert’s CPA.

Gayle failed to comply with the requirements outlined by the court, and failed to appear in court repeatedly. Additionally, she fired her lawyer. The court ordered her to come to court on November 28, and stated that if she failed to show up, she would be arrested. Gayle failed to show up to court, and was arrested and jailed. Gayle was released. In June of 2006, Gayle was arrested again. Again, the court told her she could avoid going to jail if she complied with the terms it set out: (1) signing tax returns; (2) paying Robert’s legal fees; (3) paying expert witness fees to Robert’s accountant; and (4) paying off two credit cards in full.

Gayle appealed this order. She argued that the lower court erred by not telling her whether the contempt proceedings against her were criminal or civil. The Court of Appeals determined that such an issue was immaterial. The Court of Appeals did address that contempt can be civil or criminal based on the court’s purpose for exercising such power.  Criminal contempt is a crime. The purpose of criminal contempt is to punish disobedience of an order. On the other hand, a contempt order is civil when the court uses such power to compel obedience, and compliance with the order allows the defendant to avoid going to jail. However, the contempt in this case was civil.

Gayle contested the trial court’s finding that she had the ability to take care of the credit card obligations. The trial court found she had over $580,000 in real estate equity in her name, and $32,000 worth of credit card debt. The Court of Appeals concluded that she had the ability to pay her credit card debts. Additionally, the Court of Appeals found that her refusal to sign the tax returns deliberate, and part of plan designed to frustrate the filing of amended tax returns required by the terms of the consent order. Further, the court found it was proper for Gayle to be ordered to pay Robert’s attorney’s fees. However, the court did not deem it proper for her to pay the expert witness fees.

Using Contempt to Enforce Family Law Orders

As highlighted in the cases above, contempt is a tool the court can use to make people comply with court orders. However, there are limitations on the court in a civil case on what it can make anyone do. For consent decrees, a court is not allowed to send a person to jail for noncompliance. The requirements for contempt are as follows: (1) the court orders a party to do something; (2) the party fails to do something; and (3) the party was capable of doing that something. It’s important to note that a contempt order is only available when a party was specifically told to do, or not do, something. For instance, a court cannot hold a person in contempt for failing to update the other parent about a new address, or having to constantly call the other parent, unless these requirements were specifically mentioned in the court order.

A court can find a person in contempt for a number of family-law-related orders, including consent orders, a final judgment and decree, and settlement agreement so long as the agreement was combined into a final judgment and decree. A separation that is not combined or integrated into a final judgment and decree will not be enforceable through a contempt action. The settlement agreement is a contract, and the parties will be able to enforce it like any other contract.

A court is permitted to hold a party in contempt (and possibly send the parent to jail) if the separation agreement is part of a court order, even to enforce terms the court would not have ordered itself. For example, a parent’s support for a child generally ends at age 18. But if parents agreed that one of them will pay for the child’s college education, and such an agreement becomes part of a decree, if the parent obligated to pay for college fails to do so, the parent can be held in contempt.

Contempt proceedings are usually initiated when a parent fails to comply with child support or visitation orders. As illustrated in the Watson case, a party can also bring a contempt action to enforce an equitable distribution order. The determination of whether a parent is able to do something is typically the most controversial issue. Poverty is often pleaded by a parent, but the other parent can rebut such an argument by showing what the “poverty stricken” parent was able to afford (i.e. vacations, cars, clothes, dinners, jewelry, renovations, and other luxuries).

Noncompliance with a court order does not result in contempt when a third party, who is not bound by the order, is responsible for the noncompliance. For instance, a father cannot be held in contempt if the grandmother (his mother) of the child refuses to return the child to his mother. Like the court noted in Hancock, a parent who has used all reasonable means to force a child to comply with the visitation order is not guilty of contempt if the child simply refuses. Along with contempt, the court can order a party to pay the opponent’s attorney’s fees.

Civil or Criminal Contempt

As stated in the Watson case, there are two types of contempt: criminal and civil.  The purpose of criminal contempt is to punish repeating offenders. The typical constitutional protections for those accused of a crime will apply here. Penalties for those who violate include: fines; jail time; and the payment of the opponent’s attorney’s fees. Additionally, offenders must comply with the original order, and may risk losing custody or visitation rights.

On the other hand, civil contempt serves to motivate a party to comply with the court order. Civil contempt cases must allow for an offender to remedy such violations, such as making overdue payments. Once a party complies with the order, he is no longer subject to contempt penalties.

The order to remedy the offense must be specific (i.e. order to pay a specific amount of money by a specific day). An order finding a mother in contempt and ordering her not to punish her children “in any stressful, abusive, or detrimental” way has been found to be too ambiguous for a court order. The time limit for a person incarcerated for civil contempt is limited to consecutive 90-day periods that are not to exceed one year total for the same offense.

Because of Due Process, the North Carolina Supreme Court has ruled that a trial court must consider appointing public counsel for an impoverished Defendant regardless of whether the contempt is civil or criminal. The trial court must consider the likelihood of incarceration and ask the Defendant about his desire for an attorney and ability to pay for one.

The best interests of a child must be taken into account by the court, which is why courts are hesitant to incarcerate custodial parents. In North Carolina, a court can only incarcerate a parent with custody when there is a finding that “the drastic action of incarceration of a [custodial parent] is reasonably necessary for the promotion and protection of the best interest and welfare of the child.”

Modifying Contempt Orders

As illustrated in the Baines case, a party who has violated an order will often try to modify the order he or she violated. Or, a party not yet in violation of an order will seek a modification. For instance, a parent who is obligated to pay child support and loses her job can apply to modify the order to reduce the support amount. Or the support can be modified because a change in the needs of the child. For instance, the child may switch from public to private school, or need expensive tutoring to cope with a disability or prepare for college entrance exams, or even require short- or long-term medical expenses.

A party can also seek to modify custody.  For example, a parent with primary custody may desire to move out of state for a new job, new spouse, or to be closer to family.

As in Baines, a parent can pursue custody modification if he or she is concerned about the child’s welfare, or believes the other parent is unfit. If a parent believes visitation is not proper under the circumstances, he or she should pursue a modification order instead of violating the order and being held in contempt. For instance, a North Carolina court agreed that a father who reeked of alcohol and kept an untidy, unsanitary home should have limited visitation with his child. However, these conditions did not justify the mother ignoring the visitation order for over a year.

Alimony orders can also be modified by parties. The typical scenario involves a spouse owing alimony, and later losing his or her job or experiencing a change in financial circumstances.

In any of the above cases, once an order is modified by the court, the other spouse can’t bring a motion for contempt to enforce the old order. Generally, it is in the best interest of both parties to find out the issue before bringing a contempt action. The costs of litigations are costly, demanding, and time-consuming. Additionally, the non-complying parent could have simply misunderstood the order, or forgotten about it. It may make more sense for the parties to agree on a modification without the assistance of the court.