Contempt of Court

Once you have a judgment, what do you have? Let’s say a judge signs a judgment that says that Joe Smith owes you $50,000. Do you actually have the $50,000? Does the money magically appear in your hand the moment that the judge signs the judgment? No.

Even if the judge signs an order that says not only that Joe Smith owes you $50,000, but that he has to pay you by midnight tomorrow, does that mean that the money will magically appear in your hands by midnight tomorrow? Again, no.

Once you have a judgment, what do you have? A piece of paper. That’s it. But it’s not a worthless piece of paper, just as a $100 dollar bill — which is also just a piece of paper — is not worthless. What gives the $100 dollar bill actual value is that it is backed by the full faith and credit of the United States government. Similarly, a judgment has actual value only to the extent that a chancery court will “back” its judgment or, in legal parlance, enforce its judgment.

We’ve written this Ultimate Guide to Enforcement to describe when, and how, chancery courts in Mississippi enforce their judgments and orders. [Generally speaking, the difference between orders and judgments is that judgments address the ultimate issues presented in the case (e.g., whether a divorce will be granted, who gets permanent custody, how the assets will be divided, etc.), while orders are directives that judges sign, which address the lesser issues in the case.]

As with most things in the law, there are exceptions to just about every statement that we make in the following sections. But by and large, you can expect them to apply to your case unless your lawyer or the judge tells you differently, based upon the specific facts of your situation.

Enforceable Judgments

Let’s say that you go to court and after the judge hears all of the evidence, she says that you should prevail — that you should have custody of the children, or that your ex-wife should be ordered to vacate the former marital residence, or whatever it was that you were asking for. When that happens, the judge will probably direct your lawyer to write the order or judgment. We’ve written elsewhere about this process in our Ultimate Guide to the Process of Divorce. Ideally, the judge is immediately handed a written judgment to sign. But this is often not the case. Sometimes weeks (and more rarely, months) go by between the time that the judge makes that favorable ruling in the courtroom and the time that the judge actually signs the document that sets forth the judge’s ruling.

In the meantime, before you have the “piece of paper” that we discussed in the previous section, what happens if your spouse decides to thumb his/her nose at what the judge said in the courtroom? The short answer is that without that “piece of paper” (i.e., the judgment or order signed by the judge), your remedies are drastically curtailed. Certainly your lawyer will want to do everything possible to speed the process of getting the judgment or order signed, so that the solutions that we will discuss in the following sections can be utilized. And if the issue is important enough, there are some rulings that judges will enforce even before the ruling has been reduced to a written order or judgment. But the first rule is that if you want to enforce whatever it was that the judge said in court, you need your lawyer to get the judge’s ruling reduced to a document signed by the judge and filed with the Chancery Clerk. Once that’s done, you have many more options.

Contempt of Court

The most significant remedy for enforcement of judgments and orders is often described as contempt of court. The idea is that a party knew about the judgment, was able to comply with the judgment, but simply decided to disobey the judgment — thus demonstrating his contempt for the court and its judgment. Contempt of court can be a tricky business, so let’s take a look at each piece of the puzzle before we try to fit them all together.

1. The Judgment

As we’ve discussed, you will need a written judgment or order that has been signed by the judge, and which clearly sets forth what it is that the defendant was required to do. For purposes of this Ultimate Guide, we’ll assume that the judgment is not subject to a pending appeal, or that if it was appealed, the appeal has been completed. If the judgment is presently on appeal, you can review the applicable rules for enforcement in our Ultimate Guide to Appeals.

A defendant is not in contempt of court unless he has disobeyed the judgment. This seems obvious enough, but if a judgment or order is not clear as to what it is that the defendant is supposed to do, it’s that much more difficult to prove that he didn’t do it (i.e., that he disobeyed the judgment). This is why clearly written judgments are easier to enforce. We will discuss this in greater detail in another section.

Let us take a moment to dispel a common misunderstanding about child support orders. We’ve often heard parties (and, alas, some lawyers) claim that a defendant has not disobeyed a child support order unless he is more than 30 days late on his payment. The suggestion is that if a payment is due on August 1, but is not paid until August 20, the defendant is not in contempt because he paid it within 30 days of the due date. That simply is not the law. If the payment is due on August 1, then a defendant who doesn’t pay is out of compliance at 12:01 a.m. on August 2.

This is not to say that all disobedience of court orders are treated the same. Defendants whose disobedience is mild (e.g., payment made a few days late) will typically be treated differently than those whose disobedience is severe (e.g., a few years late and still unpaid). However, a defendant who is habitually late will be treated with greater severity than one who was a few days late just once.

The point here is that there is no 30-day grace period for the payment of court-ordered obligations, unless the court order specifically says that there is. However, different degrees of disobedience are punished differently, according to their severity.

2. The Petition

To begin a contempt of court case, your lawyer will prepare a petition or complaint which explains:

• The obligation that the defendant was supposed to comply with;

• The defendant’s disobedience of that obligation;

• The plaintiff’s attempts (if any) to obtain the defendant’s compliance (e.g., Mother repeatedly asked Father to pay at least some of the child support that he owed, but he refused and told her not to bother him again); and

• A list of the things that the plaintiff wants the judge to do. In a child support case, the list will likely include: (1) a judgment for the amount of unpaid child support; (2) an award of attorney’s fees; and (3) that the defendant be incarcerated in the county jail until he has paid everything that he was ordered to pay.

Notice that the petition or complaint does not require the plaintiff to prove that the defendant was able to comply with the judgment. This is an important issue that will be addressed in the following sections. Incidentally, in this Ultimate Guide we are using the terms plaintiff and defendant, but the technical term for a plaintiff in a contempt case is either complainant or petitioner, while the term for a defendant is respondent. For purposes of this Guide, plaintiff and defendant work well enough.

A petition or complaint for Contempt of Court is filed with the Chancery Clerk in the same county where the order to be enforced was issued. For example, if the parties lived and divorced in Rankin County, but then they both move out of Rankin County (say, one to Madison County and one to Hinds County), the lawsuit will nevertheless be filed in Rankin County. Different rules apply when the order to be enforced was issued by a court outside of Mississippi or if one of the parties has become a non-resident of Mississippi.

3. The Summons

Once the petition or complaint has been filed with the Chancery Clerk, the lawyer will ask the judge’s administrator to assign a date when the lawsuit will be tried in the courthouse. This date will be written into a summons, which is a document that will be personally delivered to the defendant, along with the lawsuit, and which notifies him of the date and time when the case will be tried.

It is quite common for defendants to show up on the date of trial and ask the judge for a continuance, i.e., an order that reschedules the trial for another day. In fact, the practice is so common that in many counties in Mississippi, the date listed on the summons is understood to not be the day that the case will be tried, but instead merely a return day, which is the day that the plaintiff and the defendant jointly select the date that the case will be tried. The only way that the case will be litigated on the return day is if the defendant or a lawyer on his behalf does not come to court.

4. The Response and the Defenses Against Contempt

Defendants are not required to file a response to the plaintiff’s lawsuit, but there are good reasons why they often do. One is so that they can tell their side of the story, often by claiming a defense to the contempt charge. These defenses are described below.

• The Defense of Inability to Comply

It is an absolute defense to a contempt charge that the defendant was unable to comply with the judgment. Note that the plaintiff is under no obligation to prove that the defendant was able to comply; instead, the burden of proof falls on the defendant to show clearly and specifically that he was unable to comply. In child support cases, courts require fairly strict proof of inability to pay. If a defendant had an income, or the ability to earn an income, if he paid his other bills, if he had assets that he could have sold, if he could have borrowed money to pay the child support obligation, or at least part of what he owed, then the court will reject his defense that he was unable to pay. Defendants should expect, at a minimum, that the court will require them to submit a complete Rule 8.05 financial declaration. You can read more about that in our Ultimate Guide to Rule 8.05 Financial Declarations.

The defense of Inability to Comply is not confined to child support cases. For example, it is not uncommon in divorce cases for a spouse to be awarded the ownership of the former marital residence, with the obligation to refinance the mortgage so that the other spouse will be free of that obligation. If the spouse cannot refinance the mortgage, he will not be in contempt of court. However, he is obligated to prove clearly and specifically all of his efforts to obtain refinancing. Even if the defendant avoids a contempt charge on the defense of Inability to Comply, the plaintiff is not without other remedies, as will be discussed in another section.

In cases where the custodial parent is alleged to be in contempt for not allowing visitation, it can be a defense that the child refused to visit with the visiting parent. This is a species of the Inability to Comply defense — “I can’t force the child to get in your car for visitation.” We caution the reader that this is a complex and potentially explosive defense, not to be undertaken lightly. We address it in far greater depth in our Ultimate Guide to Custody and Visitation.

• The Defense of Payment

If the defendant paid what he was ordered to pay, then he is not in contempt for nonpayment. When we say, “the defendant paid,” that doesn’t necessarily mean that the funds came from the defendant. If his parents paid on his behalf, or if IRS tax refunds were garnished and applied to his child support obligation, this will be accounted as his payment. Under some circumstances, if the children received Social Security or Social Security Disability payments or a parent or guardian received payments on the children’s behalf, this will be accounted as the defendant’s payment.

The defense of payment requires proof, usually in the form of a canceled check or a receipt. Entries in a check register will not be accepted as proof of payment in the same way that a canceled check will be. As to payments in cash, woe be unto the defendant who paid child support in cash and did not receive a receipt; he should not be surprised if the plaintiff denies receiving the cash, and the judge decides that payment was never paid. As with any other cash transaction, get a receipt and keep up with your receipts. In a child support case, if the child being supported lived not with the payee but with the payor, the child support will be deemed paid to the extent that the child was living with him and he was providing the child’s needs.

• The Defense of Ambiguity

For a judgment or order to be enforceable by contempt, it must be clear. If a reasonable person who reads the order or judgment can’t understand what is required of him, the document will not be as enforceable as is a clear and precise directive from the court.

For example, if a judgment orders the mother to allow the father to have “reasonable visitation,” without further explanation, that’s a difficult order to enforce because it is not at all clear what “reasonable visitation” consists of. Two weekends each month? One? Three days each week? What amount of visitation during the holidays would be considered “reasonable”?

Similarly, a judgment that orders the father to pay “a reasonable amount of child support” will be hard to enforce because there is probably a broad range of figures that could be construed as “a reasonable amount of child support.” Without more precise direction from the court, how is the father supposed to know what he is required to pay?

So the first rule of enforcing a judgment, or an order, is that it unambiguously set forth what is required of the parties to the judgment.

• The Defense of Invalidity of the Judgment or Order Being Enforced

Defendants often complain that the judgment or order being enforced is invalid or should not be enforced. For example, they will argue that the child support was set too high or that the judgment was entered without them ever knowing about it. It is rare for these defenses to go anywhere. The law provides that the remedy for curing an erroneous judgment is by appeal to the Mississippi Supreme Court, whose job it is to correct erroneous judgments. Typically, the defendant either did not bother taking an appeal, or else he did appeal and the appellate court found that the judgment did not need to be reversed for error.

Still, the law provides that invalid judgments cannot be enforced. Judgments procured by fraud are not enforceable by contempt; neither are judgments entered by courts without jurisdiction (the most common example of which is that the defendant was in fact not served with process). In many situations, an action to invalidate a judgment must be filed within six months after the entry of the invalid judgment. Even then, the law sets a high bar for invalidating judgments.

5. Discovery

We discuss what discovery is in our Ultimate Guide to the Process of Divorce. Briefly stated, you can demand that your opponent produce documents and other materials, and you can put written questions to your opponent that he must answer under oath. You can take his deposition, and depose other witnesses. You can serve subpoenas on third parties such as banks and credit card companies for the production of documents.

Contempt of court cases are usually tried within a few months of their filing. This leaves little time for discovery. If you intend to pursue discovery, pursue it promptly.

6. The Trial

It sometimes happens that the defendant decides that the best defense is to not go to court. When he fails or refuses to come to court, the judge will issue a capias for his arrest. A capias is an arrest warrant issued in civil (as opposed to criminal) cases. Most contempt of court cases involve unpaid child support. The plaintiff has very little work to do. She will likely be called as a witness by her attorney. From the witness stand, she will be asked to identify the court order that established the child support and to state what child support payments have and have not been paid.

It helps tremendously to have an organized presentation. In a child support case, the Plaintiff and her attorney should have a spreadsheet that in one column lists every payment that was supposed to have been paid, and in another column, every payment that was made, showing the date and amount of payment. Of course, a zero will indicate where no payment was made.

There is one species of contempt where organization is critical. This is where the defendant has not paid expenses, such as medical bills, extracurricular activity fees, day care expenses, charges for private school, and so forth. These are sometimes known as shoebox cases because clients often arrive at their lawyer’s office, or at court, with a shoebox full of bills, receipts, canceled checks and whatnot, with absolutely no thought given to organization.

When presented with a shoebox case, judges often throw up their hands and are likely to adjourn the proceedings until the plaintiff has organized the mess into an orderly presentation. As with child support, this should begin with a spreadsheet that clearly shows the date, amount, and payee of each item (be it the private school, the doctor, or whomever). Accompanying the spreadsheet should be the receipt or bill for each entry, followed by the letter, email, or other demand for payment previously made to the defendant.

Obviously, preparing a shoebox case for trial cannot be undertaken on the fly — certainly not at the courthouse a few minutes before trial is scheduled to begin. Ideally, the orderly presentation described above is arranged even before the lawsuit is filed and is included in the complaint or petition as an exhibit. Suffice it to say that if you are seeking repayment of expenses, the time to raise the subject is during your initial consultation with your lawyer. If you wait until a few days before trial to raise this issue with your lawyer, it’s probably too late for him to present your claim to the judge.

If the defendant has raised a defense, such as inability to pay, the plaintiff will likely be asked what she knows about the defense. The plaintiff is subject to cross-examination by the defendant’s attorney, usually focused on having her admit at least some of the facts that would establish the defendant’s defense. Of course, it is impossible for us to anticipate here all of the different lines of questioning that might be pursued.

Both sides in a contempt case are entitled to call whatever witnesses are needed to establish their case, but typically, the only witnesses are the plaintiff and defendant. Once the plaintiff has testified, the defendant will usually testify, although he is not required to do so. Occasionally, the plaintiff’s attorney’s first witness will be the defendant to see whether he will admit the case without further ado.

We might point out that in some situations, a defendant is entitled to demand a trial by jury. This would be highly unusual, but the law does allow for it under the right circumstances.

6. The Judgment

At the conclusion of trial, the judge will announce the decision of the court. The decision is the court’s response to the plaintiff’s requests, so let’s review those requests.

• Incarceration

Plaintiffs typically ask that the defendant be incarcerated in the county jail. The incarceration can be for a specific period of time, e.g., for 30 days, or one week, or whatever. Incarceration for a specific period of time is unlikely to exceed six months and is usually far briefer.

Much more common than incarceration for a specific period of time is incarceration until the defendant has complied with the order or judgment being enforced. As soon as the defendant complies with the order or judgment, he is entitled to release from incarceration.

In child support cases, the judge will often set what is colloquially referred to as a purge amount, so called because this is the amount that the defendant must pay to “purge” himself of his contempt. What this means is that if the defendant can pay the purge amount before the deputy sheriff escorts him to the county jail, then he won’t be incarcerated at all. Or if he is incarcerated, as soon as he pays the purge amount, he is entitled to be released.

Of course, the defendant doesn’t physically pay the purge amount; someone pays it for him, usually a spouse or other family member. Let’s review an example of how this would work in real life. Suppose that the judge decides that the defendant is $20,000 in arrears in unpaid child support. If the judge decides that the defendant should be incarcerated, the judge will order the incarceration and the purge amount. The actual amount will be whatever the judge thinks the defendant can come up with — anything from $20,000 all the way down to $1.

The court bailiff will handcuff the defendant right then and there, waiting for the paperwork to be processed so that he can take the defendant to jail. Usually, the defendant instructs his lawyer to call whichever family member is most likely to raise the purge amount, and as one might imagine, there is a certain intensity to this conversation!

Let us pause here to explode one argument that we often hear, which is that there is no point putting the defendant in jail, since he can’t work or come up with money while incarcerated. Our experience, and we may safely say the experience of every lawyer with any experience practicing family law, is to the contrary. Defendants who swear on their mother’s grave that they can’t pay a penny, they’re tapped out, they’ll just have to go to jail, they don’t have anything ... suddenly come up with thousands of dollars in a few minutes’ time once the handcuffs go on. Every lawyer has observed this phenomenon time and again.

If the defendant doesn’t pay the purge amount, then he will be transported to the county jail. Theoretically, a contempt of court defendant could serve what amounts to a life sentence if he refuses to comply with the court order. As a practical matter, few serve as much as six months. The longer that the defendant remains in jail, the more amenable plaintiffs and judges become to a request by the defendant’s attorney to reduce the purge amount.

The purge amount could be the entire amount owed. If it is an amount less than the entire amount owed, the defendant will be given a court-ordered payment plan for the remainder owed. This new order is itself subject to contempt of court charges, meaning that if a defendant doesn’t comply with the payment plan, he can be subject to a new contempt of court case and re-incarcerated until he is in compliance with the payment plan.

• Judgment

In addition to, and not in lieu of, the right to ask for incarceration, the plaintiff can also ask that a judgment be entered against the defendant in the amount owed. This is helpful to establish how much the defendant owed at a particular point in time. It is also a prerequisite to a Writ of Garnishment and a Writ of Execution, discussed in the following sections.

The judgment may include pre-judgment and post-judgment interest, at a rate determined by the judge. Judges typically look to the plaintiff’s attorney to calculate the actual dollar amount of this interest. The judgment may also include an award of attorney’s fees.

• Attorney’s Fees

The plaintiff is entitled to an award of reasonable attorney’s fees in the amount necessary to prosecute the contempt lawsuit. There are a few caveats to this rule. First, attorney’s fees will not be awarded unless the plaintiff asked for them in the complaint or petition. Second, they will not be awarded unless the plaintiff presents the proper evidentiary proof during the trial.

Third, it is not unusual for several issues to be tried during the same trial as the contempt issue. Put another way, the contempt of court might be only one of several claims being decided by the judge at trial. The plaintiff’s lawyer has to prepare for a trial of all of these claims, which means more fees will be generated than would have been if the only issue being litigated had been the contempt. The plaintiff is entitled to an award of attorney’s fees for the contempt of court case but not for the preparation for and trial of the other issues.

Fourth, it is also not unusual for judges to award far less in attorney’s fees than the attorney actually charged for the contempt of court case. Just because your lawyer charged you $4,000 to litigate your contempt case does not mean that the judge will award you $4,000.

Fifth, attorney’s fees are only awarded to plaintiffs who win their contempt case. No fees are awarded to plaintiffs who lose. The obverse to this rule does not apply; defendants who win their contempt cases are not entitled to an award of attorney’s fees, unless the judge finds that the case was brought in bad faith, or solely for the purpose of harassment, or in the pursuit of some similar motive.

7. Appeal from the Judgment

Either party is entitled to appeal from an adverse judgment in a contempt of court case. We have written an Ultimate Guide to Appeals.

8. Other Remedies Besides Contempt

• Writ of Execution

If a judgment for a specific dollar amount was entered against the defendant, the plaintiff is entitled to issuance of a Writ of Execution and a Writ of Garnishment. A Writ of Execution is a directive to the sheriff to take possession of the defendant’s property and sell it at auction, applying the proceeds from that sale to the judgment.

It sounds more awesome than it actually is because the only property that can be seized is non-exempt property. A bankruptcy attorney might do a better job than we could in explaining exactly what non-exempt property is. Generally, every state has established a list of real and personal property that cannot be sold against the debtor’s will in order to satisfy a debt. Clothes, household furnishings, a modest car, and a homestead are all usually exempted from sale. In other words, the impecunious debtor will own little if anything that is non-exempt.

A second problem is that any debt secured by the debtor’s property will be first in line (i.e., ahead of the plaintiff) to receive the proceeds from the sale. So if the defendant has a nice new truck that the sheriff sells for $50,000, but the truck is financed through the bank, and the note has a balance of $50,000 or more, the plaintiff in the contempt case will receive zero dollars.

The good news is that you don’t have to ask the judge to issue the Writ. Just have the Chancery Clerk do it. The cost is minimal, as is the fee charged by the sheriff to levy execution. Note: if the defendant’s property is in a county that is different from the county in which the judgment was issued, have the Writ issued by the Clerk in the county where the judgment was issued, but then forward the Writ to the sheriff of the county where the property is located. Actually, this is a detail for your lawyer to worry about.

• Writ of Garnishment

The Chancery Clerk will also issue a Writ of Garnishment without your having to ask the judge for one. A gross oversimplification of a Writ of Garnishment is that it directs persons and institutions who owe money to the debtor to instead pay the judgment creditor. The classic example of how a Writ of Garnishment is used is when the judgment debtor is known to have a bank account. By serving the Writ on the bank, the bank will often pay the account balance to the Chancery Clerk, who will hold the funds until the judge decides who will receive them. The bank is often allowed to deduct its reasonable attorney’s fees from the amount paid over to the Clerk. Whatever is left over is paid to the judgment creditor, i.e., the plaintiff in the contempt case.

Where child support or alimony has been ordered, the judge can order that a Writ of Garnishment (sometimes called a Wage Withholding Order) be served on the payor’s employer. The employer then becomes liable to pay the child support or alimony (up to the statutory limit) and can deduct the amount so paid from the employee’s paycheck. The upper limit of what can be deducted under a Wage Withholding Order is 50 percent of the employee’s pay.

Used in this manner, the Writ of Garnishment can be issued before the employee ever falls into arrears. In fact, the judge can order that a Writ of Garnishment will be issued at the same time that the judgment for child support or alimony is issued. Of course, a Writ of Garnishment can also be issued to the employee’s employer after a judgment for past-due child support or alimony has been entered. Again, the foregoing is a gross oversimplification of how a Writ of Garnishment actually works. The point to be made is that if the debtor has a known bank account or employer, or both, a Writ of Garnishment can be an effective method for collecting a judgment.

• Writs of Assistance and Habeas Corpus

Writs of Execution and Garnishment are used to collect judgments for money. How do you “collect” on a judgment for visitation or custody? Certainly you can file a lawsuit for contempt, but it can often take weeks if not months for the trial date to arrive. A much quicker remedy is to ask the judge to issue a Writ of Assistance, which is a directive to law enforcement officers to assist a parent in picking up a child in furtherance of a custody or visitation order.

A parent (or anyone else) who obstructs the officers as they enforce the Writ is likely to be arrested, so the Writ usually gets the job done. The judge can also issue a Writ of Habeas Corpus, which directs any person having the child to bring the child to the courthouse — where the judge will decide which adult should have the child. Writs of Habeas Corpus are often sought where the parent has a clear right to the child, but that right is not based on a court order. For example, if a grandparent or other relative is withholding the child, the law imparts the parent with the right to the child’s custody even without a formal court order saying as much.

Unlike Writs of Execution and Garnishment, Writs of Assistance and Habeas Corpus will not be issued by the Chancery Clerk; you must apply directly to the judge. Often a hearing will be required, unless the matter has already been litigated.

• Reformation of the Contract/Judgment

Sometimes, the object of a contract or judgment cannot be achieved, or at least not in the manner anticipated at the time that the contract was executed or the judgment issued. One example that we have mentioned is a judgment of divorce that awards ownership of the former marital residence to the wife but requires her to refinance the mortgage. If the wife diligently tries to refinance, only to have her application rejected, she is not in contempt of court because she is unable to comply with the judgment. What then can the husband do in order to remove his name from the mortgage?

Under limited circumstances, the law allows contracts and judgments to be reformed to the extent possible to achieve their objects at the time of formation. In other words, the “deal” can be changed (sometimes) to accomplish the purpose of the contract. Technically, this is not enforcement of the judgment so much as it is a rewriting of the judgment.

Rules abound as to how and when this can be done. The law emphatically does not provide that contracts and judgments can be rewritten merely because one party decided that he made a bad deal or got the short end of the stick. Our purpose here is not so much to explain how and when judgments can be reformed as to point out that sometimes they can be. Your lawyer will have to work through the particulars of your circumstances to advise you as to whether this remedy is available.

• Modification of the Judgment

As often as not, a defendant in a contempt or other enforcement matter will want the judgment changed (the technical term is modified) so that it will more fairly reflect the parties’ and the child’s respective status quo at the time of the modification. The topic of modifications is so large that we have written an Ultimate Guide to Modifications. The point to be made is that before a plaintiff proceeds with an enforcement action, she should carefully consider the possibility — indeed, probability — that the defendant will respond with a modification lawsuit.