Contempt money sanctions to enforce parenting time!

GOOD MORNING FLINT!
09/03/09
BY Terry Bankert, Flint Divorce attorney.
http://www.attorneybankert.com

HOT OFF THE PRESS FROM THE MICHIGAN COURT OF APPEALS

Issues:
Attorney Terry Bankert specializing in divorce practicing in Flint Michigan often has cases where one of the parties does not obey a court order.

The remedy are complaining to the friend of the Court or seeking a show cause for Contempt from the Judge.

The Sanction then is compliance with the court order to include make up parenting time or a partial or full payment of child support ordered for instance.

Here the judge imposed a monetary sanction to compel performance not as a punishment.

The Court of appeals up held the lower court.

CONTEMPT PROCEEDINGS

1.Post-judgment contempt orders regarding parenting time with the defendant-father; Docket No. 284086 - Whether the trial court abused its discretion by finding the plaintiff-mother in contempt where the proceedings were criminal not civil; DeGeorge v. Warheit; In re Contempt of Henry; In re Contempt of Auto. Club Ins. Ass'n; In re Contempt of Calcutt; MCL 600.1721; MCL 600.1701; MCL 600.1715; Bowler v. Bowler; Casbergue v. Casbergue; Jaikins v. Jaikins; The Friend of the Court Act (MCL 552.501 et seq.); The Support & Parenting Time Act (MCL 552.601 et seq.); MCL 552.644;

SHOW CAUSE REQUIREMENTS

2.Whether the defendant's failure to attach a supporting affidavit to his motions for orders to show cause as required by MCR 3.606(A) deprived the trial court of its jurisdiction over the contempt proceedings; MCL 600. 1711(2) (affidavit or other method to show contempt); MCL 552.511b(1); Michigan Gas & Elec. Co. v. Dowagiac; Docket No. 28509 - Failure to satisfy the requirements for affidavits under MCR 2.119(B); Steingold v. Wayne County Probate Court Judge; MCR 2.119 and MCR 2.114; Campbell v. Recorders Court Judge; Lack of notary affixed to defendant's petition for show cause; MCL 552.17a(1); MCL 722.27(1)(c); Harvey v. Harvey; DenHeeten v. DenHeeten; Docket No. 284086 - Plaintiff's failure to sign a consent order and pay the court-ordered sanctions;

3.Whether plaintiff was accorded due process and sufficient evidence supported the trial court's February 13, 2008 contempt order; Plaintiff's claim of poverty; Plaintiff's refusal to sign the counselor's order; Johnson v. White; In re Contempt of DudzinskiSee:Court: Michigan Court of Appeals (Published) 9/1/09,Case Name: Porter v. Portere-Journal Number: 43605,Judge(s): Markey, Cavanagh, and DavisLower Wayne County Circuit Court , 95-525527-DM

THE DECISIOIN OF THE MICHIGAN COURT OF APPEALS

Rejecting the plaintiff-mother's claim the post-divorce judgment contempt proceedings related to the defendant-father's parenting time were criminal and she was not afforded the procedural protections of a criminal contempt proceeding, the court held they were civil in nature because the trial court was attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right of parenting time with his son. The court affirmed both contempt orders.

BACKGROUND

The parties are divorced and have one minor child who lives with plaintiff in Michigan.

The divorce case, originally filed in Massachusetts, was transferred in Michigan. Defendant continued to live in that state, but at the time of these proceedings had relocated to New Hampshire. The child has a history of being contentious as to visiting his father.

The trial court appointed a guardian ad litem for the child who recommended defendant have continued parenting time, telephone contact, and the child receive mental health therapy.

The trial court adopted the recommendations and ordered them to be facilitated by the parties. Subsequently, when the order was not followed, defendant filed motions to show cause why the plaintiff should not be held in contempt for not complying with the requirements of the order.

The trial court issued two contempt orders related to the plaintiff's noncompliance with the parenting issues, including monetary sanctions. On appeal, she raised numerous reasons why the contempt orders should not be enforced. However, the court held, inter alia, the contempt orders were not reversible on the basis of a technical violation of MCR 3.606(A), the trial court had jurisdiction to issue them, and affirmed. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.

Misc.

Relevant to this appeal, the trial court ordered parenting time for defendant, including two weeks of summer visitation commencing June 30, 2007, and that defendant have at least 10 minutes weekly telephone contact with the child.

On July 17, 2007, defendant filed a motion for the issuance of an order to show causewhy plaintiff should not be held in contempt because the ordered summer visitation andtelephone contact did not occur.

On July 18, 2007, the trial court issued its order to show cause and after a July 27, 2007, hearing, found plaintiff in contempt. The court ordered that defendant be provided re-scheduled summer visitation from August 5, 2007 through August 19, 2007.

The contempt order also sanctioned plaintiff $1,000 to be paid by August 29, 2007. The court reserved defendant's request for attorney fees. Plaintiff appeals this order in Docket No. 285095.Plaintiff did not pay the $1,000 sanctions.

Also, the court-ordered August visitation didnot occur, and defendant did not have parenting time for Thanksgiving 2007. On December 12, 2007, defendant filed another motion for an order to show cause why plaintiff should not be held in contempt of court for failing to comply with the trial court's orders.

The trial court, again, ordered plaintiff to pay both the previously ordered $1,000 sanction and an additional $3,100 to pay defendant's counsel an attorney fee. In addition, the court ordered that the parties continue to attend family reconciliation counseling and warned that plaintiff would be sanctioned $2,000 if she failed to cooperate with the counselor.

The court's December 19, 2007, order also included specific travel plans for the child to visit defendant during his Christmas parenting time.

On January 31, 2008, defendant filed yet another motion for an order to show cause whyplaintiff should not be held in contempt for failing to pay the $4,100 in sanctions and attorney fees arising out of the July 27 and December 19, 2007, show cause hearings and for not cooperating with the family counselor by not approving a consent order the counselor required to clarify her authority and fees.

At a February 13, 2008, show cause hearing, the trial court found plaintiff in contempt and ordered plaintiff jailed for two days unless she paid the $4,100.

The court also sanctioned plaintiff $2,000 for her failure to cooperate with the family counselor by not signing the consent order. The trial court entered a separate order containing the provisionsof the proposed consent order by appointing the family counselor as the parties' child specialist and addressing her fees and authority.

Plaintiff first argues that the trial court abused its discretion by finding her in contemptbecause the proceedings were criminal, not civil.

Plaintiff contends she was punished forviolating the trial court's June 25, 2007, order, but was not accorded the procedural protection of a criminal contempt proceeding. Moreover, she argues that because an order to show cause was issued without a supporting affidavit as required by MCR 3.606(A), the trial court lacked jurisdiction over the contempt proceeding. The Court disagreed.

The Court First, rejected plaintiff's argument that the contempt proceedings at issue here were criminal. "Criminal contempt differs from civil contempt in that the sanctions are punitive rather than remedial." DeGeorge, supra at 594. "Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both."

In re Contempt of Henry, 282 Mich App 656, 666; 765 NW2d 44 (2009) (citations omitted).

When a court exercises its criminal contempt power it is not attempting to force the contemnor to comply with an order but is simply punishing the contemnor for past misconduct that was an affront to the court's dignity.

On the other hand, if the court employs its contempt power tocoerce compliance with a present or future obligation or to reimburse the complainant for costs incurred by the contemptuous behavior, including attorney fees, the proceedings are civil. In re Contempt of Dougherty, 429 Mich 81, 91-96; 413 NW2d 392 (1987); In re Contempt of Calcutt,Thus, there "are two types of civil contempt sanctions, coercive and compensatory." Dougherty, supra at 97.

Nevertheless, civil sanctions primarily intended to compel the contemnor to comply with the court's order may also have a punitive effect. Id. at 93; DeGeorge, supra at 592. "`

If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil . . . . The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court.'" Dougherty, supra at 95-96, quoting People ex rel Attorney General v Yarowsky, 236 Mich 169,171-172; 210 NW 246 (1926) (citation omitted).

Differentiating between civil contempt and criminal contempt is not easy because bothforms of contempt might result in the contemnor's being imprisoned for willfully failing to comply with an order of the court. MCL 600.1701; MCL 600.1715.

Thus, all contempt proceedings are referred to as "quasi-criminal" or "criminal in nature." In re Contempt of Dougherty, 429 Mich 81, 90; 413 NW2d 392 (1987), citing Bessette v W B Conkey Co, 194 US 324, 326; 24 S Ct 665; 48 L Ed 997 (1904), and Moskovitz, Contempt of injunctions, civil and criminal, 43 Colum L R 780 (1943).

The distinction between civil and criminal contempt is important because "a criminal contempt proceeding requires some, but not all, of the due process safeguards of an ordinary criminal trial." Dougherty, supra at 91.

A party charged with criminal contempt is presumed innocent, enjoys the right against self-incrimination, and the contempt must be proven beyond a reasonable doubt. DeGeorge, supra at 594; Jaikins, supra at 120-121.Further, a party accused of criminal contempt must be "be informed of the nature of the charge against him or her and to be given adequate opportunity to prepare a defense and to secure the assistance of counsel." DeGeorge, supra at 594.

In contrast, in a civil contempt proceeding, the accused must be accorded rudimentary due process, i.e., notice and an opportunity to present a defense, and the party seeking enforcement of the court's order bears the burden of proving by apreponderance of the evidence that the order was violated. Bowler v Bowler, 351 Mich 398, 405; 88 NW2d 505 (1958); Auto Club, supra at 712-713.

Here the trial court was not trying to punish plaintiff for past misconduct because its dignity had been offended; it was instead attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right to parenting time with his son.

On entry of the contempt order of July 27, 2007, plaintiff could purgeherself of contempt by paying the $1,000 sanction and complying with the order for specific makeup visitation. See Auto Club, supra at 712 ("Civil contempt ends when the contemnor complies with the court's order or is no longer able to do so and pays any fines or costs for the contempt proceedings.");

In a case the Court held that contempt proceedings to enforce court-ordered visitation were civil and the trial court erred when it did not permit the contemptuous party to purge himself from contempt.

The case went on to address several other issues. Here we just explored the civil nature of a Domestic ( Family Law) contempt proceedings.

In domestic cases possibly we should include financial sanctions for n on compliance of parenting and support orders.

Posted here by Terry Bankert
http://www.flingtfamilylaw.com