ENFORCEMENT OF FAMILY LAW ORDERS
BY CONTEMPT IN CALIFORNIA
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Contempt - General Concepts
A party subject to a valid court order who, with knowledge
of the order and the ability to comply, fails to comply with
the terms of the order is subject to a contempt adjudication
and statutory contempt penalties (Ca Civ Pro §§ 1218
& 1219). As an enforcement remedy, exercise of the contempt
power enables the court to compel compliance with its valid
In a "civil contempt," the punishment is "remedial,
and for the benefit of the complainant." In a "criminal
contempt," the sentence is "punitive, to vindicate
the authority of the court."
The face of the Judicial Council Affidavit for Contempt form
expressly states "A contempt proceeding is criminal in
nature" and advises the citee that "the possible penalties
include jail sentence . . ." Consequently, at least one
court concludes any contempt proceeding brought on the standard
Judicial Council contempt form is per se a criminal (not a civil
or "remedial") contempt matter.
Family law orders and judgments are enforceable by contempt
unless punishment by contempt would violate the constitutional
guaranty against imprisonment for nonpayment of "debt"
(U.S. Const., Amend. XIII; Ca Const. Art. I, § 10). However,
an order or judgment is not a "debt" within the meaning
of the constitutional guaranty against imprisonment for "debt"
simply because it requires the payment of money. As developed
below, most (but not all) family law orders and judgments are
deemed based on a law-imposed obligation (not "money judgments
in civil actions for debts") and thus are enforceable by
the court's contempt power.
Orders Enforceable By
Support Orders: Child, spousal and family
support orders are based on an obligation arising out of marriage
and parentage and are imposed by law. They are not money judgments
in civil actions for the payment of a "debt" within
the meaning of the constitutional guaranty against imprisonment
for debt and thus clearly are enforceable by contempt.
Child Custody & Visitation Orders: Child
custody and visitation orders do not impose a "debt"
obligation. Thus, e.g., the court may invoke its contempt power
against a parent who unjustifiably interferes with the other
parent's court-ordered visitation rights or violates an injunction
restraining relocation with the children.
Attorney Fees/Costs Orders: Need-based attorney
fees and costs are awardable by statute in marital proceedings
(Ca Fam §§ 2030/2032). The award is based on a law-imposed
obligation (not arising out of a money judgment for a "debt")
and thus is enforceable by contempt.
Property Division Orders: A spouse who refuses
to relinquish a specific item of property or to pay over a portion
of a specific fund of money pursuant to a community property
division order is subject to enforcement by contempt. The obligation
is "law-imposed" (not a "debt") because
based on the parties' statutory right to an equal division of
community property upon termination of marital status (Ca Fam
§ 2550 et seq.).
Restraining Orders & Family Court Protective Orders: The court may properly invoke its contempt power to
compel compliance with valid protective orders and restraining
orders issued in a domestic relations proceeding. [Ca Penal
§ 273.6 (misdemeanor penalty for intentional and knowing
violation of Ca Fam § 6218 protective orders)]
Failure To Comply With "Declaration Of Disclosure"
Requirements: A spouse who has complied with the statutory
"declaration of disclosure" requirements in marriage
dissolution proceedings (Ca Fam § 2100 et seq.) has various
statutory remedies against the other spouse who has failed to
comply. One such remedy is a motion to compel a further response
(Ca Fam § 2107(b)(1)). If the noncomplying spouse fails
to file a sufficient response, the complying spouse may seek
monetary sanctions "in addition to any other remedy provided
by law" (Ca Fam § 2107(c))--including an OSC re Contempt]
Orders Enforceable By
Marital Settlement Agreement Obligations Not Merged
Into Judgment: Obligations arising out of a marital
settlement agreement are not enforceable as court orders unless
"merged" or incorporated in the judgment. Consequently,
breach of a marital settlement agreement (or any other contract)
is not remediable by contempt where the defaulted obligation
was never made a part of the judgment.
Marital Debt Liability Orders: An order pursuant
to a division of the community estate requiring a spouse to
make specified payments in satisfaction of a community liability
is a "debt" not enforceable by contempt . . . unless
the obligation is an integral part of a support order.
Statute Of Limitations
The contempt remedy for noncompliance with a court order made
under the Family Code is subject to a statute of limitations
(Ca Civ Pro § 1218.5)
Support Orders: For an alleged failure to
pay child, family or spousal support, the contempt action must
be commenced no later than three years from the date the payment
was due. [Ca Civ Pro § 1218.5(b)
A contempt cause of action for nonpayment of support may be
broken down into separate "counts" for each month
payment was not made in full. Thus, the fact the obligor stopped
(or fell short in) payments over three years ago is not fatal
to a contempt remedy: Each month within the three-year period
for which payments were in default is separately punishable
as separate counts of contempt. [See Ca Civ Pro § 1218.5(a)]
Other Family Court Orders: A contempt action
to enforce any other order made under the Family Code must be
brought within two years "from the time that the alleged
contempt occurred." [Ca Civ Pro § 1218.5(b)]
Due Process Protections
If the contempt proceedings are criminal in nature, the U.S.
Constitution guarantees the citee the full panoply of due process
safeguards afforded criminal defendants.
Notice Of The Charge: The citee must be formally
notified of the charge and of the time and place for the court
hearing on the charge. Service of the notice must be effected
in a manner authorized for service of summons; an OSC re Contempt
is not properly served by the more liberal Ca Civ Pro §
1010 et seq. methods for service of motions or OSCs generally.[Ca
Civ Pro § 1016; Ca Fam § 215]
Opportunity To Be Heard: Unlike ordinary motion
and OSC proceedings, contempt cannot be decided on the moving
and responding papers alone. The citee is entitled to a formal
hearing as a matter of right and must be allowed to testify,
to call and cross-examine witnesses, and to introduce evidence
in defense of the charge. [Ca Civ Pro § 1217]
Right To Counsel: Contempt citees clearly
have a due process right to be represented by an attorney they
have retained for that purpose. Additionally, where the potential
penalty includes a jail sentence, an indigent citee has the
due process right to court-appointed counsel at county expense.
Application Of The 5th Amendment: The citee
must be afforded the testimonial privileges of a criminally
accused: He or she is entitled to exercise the privilege not
to be called as a witness, and can decline to answer specific
questions, claiming the privilege against self-incrimination.
These privileges are not waived by filing an answer to the charging
Criminal Burden Of Proof: As a general rule,
the citee also has the same rights as a criminally accused to
proof of a prima facie contempt case by competent evidence beyond
a reasonable doubt. The contempt must be discharged if the charging
party fails to carry this burden on each element of the prima
Right To Jury Trial: The Sixth Amendment to
the U.S. Constitution guarantees the right to a jury trial for
all "serious" criminal contempts--i.e., when the contempt
is punishable by more than six months' imprisonment.
The right to a jury trial under the California constitution
is broader: It extends to all criminal prosecutions above an
"infraction." Thus, there is a right to jury trial
in criminal contempt proceedings that carry a maximum penalty
comparable to a felony or misdemeanor (six months' imprisonment
plus $1,000 fine) regardless of what the Legislature has labeled
However, there is no right to jury trial where the court invokes
its general summary contempt power under Ca Civ Pro § 1209
and imposes only a maximum five-day sentence and/or $1,000 fine
(Ca Civ Pro § 1218(a)). That punishment is not akin to
a misdemeanor penalty and thus does not trigger the state constitutional
jury trial provision.
If the court proceeds to trial on contempt charges without
a jury, and the citee has not expressly waived the right to
a jury, the maximum sentence that may be imposed is 180 days
(six months). A longer sentence in violation of the jury trial
right will not invalidate the contempt conviction or require
retrial by jury; but the court must reduce the sentence to six
months or less.
Double Jeopardy: Constitutional "double
jeopardy" protection guarantees that a person will not
be subject to duplicate punishment or duplicate prosecution
for the same criminal offense (U.S. Const., 5th Amend; see also
Ca Penal § 1387). Double jeopardy protection fully attaches
in a nonsummary criminal contempt prosecution to the same extent
as it does in other prosecutions for a criminal offense.
Initiating Contempt Proceedings
Contempt proceedings to enforce a civil judgment or order are
commenced by presenting a prescribed "charging affidavit"
to the court. [Ca Civ Pro § 1211(a)] Based on the affidavit
(which recites the facts constituting the prima facie contempt),
the court must then issue and sign an order to show cause directing
the alleged contemnor to appear and be heard on the charge at
a specified date and time. [Ca Civ Pro § 1212]
In family law cases, the contempt proceedings must be initiated
by filing and serving an FL-410 Order to Show Cause and Affidavit
for Contempt, along with an applicable Affidavit of Facts Constituting
Contempt (FL-411 or FL-412). These forms have been adopted for
The facts constituting the contempt must be alleged by an "affidavit
of facts," setting forth the type of order violated, the
date the order was issued, how the order was violated, and when
the violation occurred. Jurisdiction to adjudicate a contempt
ordinarily exists only if the charging affidavit alleges evidentiary
facts showing a prima facie case of contempt (as developed below).
[Ca Civ Pro § 1211(a)] However, a deficient charging affidavit
may be amended at any stage of the proceeding (Ca Civ Pro §
1211.5(b)). And, if there is no objection to the sufficiency
of the charging affidavit, jurisdiction to adjudicate contempt
may be established by facts proved at the contempt hearing (in
which case, the court "shall cause the affidavit or statement
to be amended to conform to proof"). [Ca Civ Pro §
Elements Of A Cause Of
Action For Contempt:
The facts generally necessary to establish a prima facie contempt
of a family law order are: (i) rendition of a valid order; (ii)
the citee's knowledge of the order; and (iii) the citee's willful
disobedience of the order.
Valid Order: A contempt adjudication cannot
stand if the underlying order is invalid. The charging affidavit
must identify the underlying order by date of entry and type.
For purposes of sustaining a prima facie case, the court can
presume validity unless the order is void on its face; the citee
thus normally bears the burden of showing invalidity, either
as an affirmative defense in the answer or by motion to discharge
the contempt citation.
Knowledge Of The Order: The charging affidavit
must set forth facts showing the citee's notice or knowledge
of the underlying order (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 (e.g., modification).
Order Willfully Disobeyed: To complete a prima
facie case of contempt, the charging party must allege facts
showing the citee's willful disobedience of the underlying order.
Support Cases: In making a family law support or attorney
fees/costs order, the family court necessarily must determine
the obligor's ability to pay (Ca Fam §§ 4320(c)
(spousal support), 4053(c),(d) (child support), 270, 271(a),
2030(a) (attorney fees and costs)). Since the court has already
determined the obligor/citee'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
Custody/Visitation Cases: 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.
Filing And Service
Filing With Court Clerk: The completed OSC
and affidavit form(s) are taken to the court clerk, who will
obtain the judge's signature on the OSC and then file the papers.
Personal Service Required: Conformed copies
of the charging affidavit and OSC must be served on the citee
at least 21 calendar days before the hearing (Ca Civ
Pro § 1005(b)). The citee must be served personally, in
a manner authorized for service of summons. Service on the citee's
attorney will not suffice in a contempt proceeding. [Ca Civ
Pro §§ 1015, 1016; see also Ca Fam § 215 (postjudgment
Exception Were Citee Conceals Him/Herself: "Substitute
service" on the citee's attorney of record might suffice
where the citee has concealed himself or herself to avoid
service of the contempt papers. [Shibley v. Super.Ct. (1927)
202 Cal. 738, 742-743, 262 P 332, 334; see also Cedars-Sinai
Imaging Med. Group v. Super.Ct. (Moore), supra, 83 Cal.App.4th
at 1286, 100 Cal.Rptr.2d at 324--personal service on citee
required "(u)nless the citee has concealed himself from
the court"] However, a charging party seeking to invoke
this exception to personal service must provide the court
with evidentiary facts showing reasonable efforts to ascertain
the citee's whereabouts and the efforts taken to attempt service
on the citee.
Responding To The Charge
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 (declaration under
penalty of perjury; Ca Civ Pro § 2015.5), 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.
Common Defenses: 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.
Motion For Discharge: 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.
Appearance At The Hearing: 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. [Ca
Civ Pro § 1217]
Admissable Evidence: The charging and opposing
affidavits are hearsay and thus inadmissible over objection.
[Ca Evid §§ 1200(a),(b)]
The penalties upon a contempt adjudication are prescribed by
Ca Civ Pro §§ 1218 and 1219.
Mandatory Community Service Or Imprisonment: 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 Ca Civ
Pro § 1218(c).
First Contempt: Upon a first finding of contempt,
the 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. [Ca Civ Pro § 1218(c)(1)]
Second 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. [Ca Civ Pro
Third 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. [Ca Civ
Pro § 1218(c)(3)(A)]
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. [Ca Civ Pro § 1218(c)(3)(B)]
Calculating "Counts" Of Contempt In Support Nonpayment
Cases: 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. [Ca Civ Pro § 1218.5(a)]
Read together with § 1218(c), above, 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.
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 §
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).
Attorney Fees And Costs: 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. [Ca Civ Pro § 1218(a)]
Attorney Fees & Costs:
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