Motion for Contempt

When you finished your divorce case and the judge entered the Final Judgment For Dissolution Of Marriage you probably breathed a sigh of relief and hoped everything would now be okay. However, many parties soon realize that the entry of the court’s judgment or order does not always mean that the parties will comply voluntarily. If a party fails to pay child support in a timely fashion or even not at all, there is a way to ask the court to enforce its judgments and orders. A party can file a motion for contempt.

There are two types of contempt proceedings, civil and criminal. Civil contempt is coercive, forcing you to pay your child-support or alimony which you are capable of doing. Criminal contempt is punitive, punishing the party for something they did that can't be remedied. Most contempt proceedings are civil in nature; you asked the judge to send your spouse to jail if your spouse denies your timesharing with the children. A party can be held in contempt for failure to pay child support or alimony.

A civil contempt proceeding for the enforcement of support (alimony or child support) is started by the filing of a motion. The party obligated to pay support is initially presumed to have the ability to pay based upon the existing judgment or order.

For a civil contempt proceeding, notice and an opportunity to be heard are required before someone can be held in contempt by the court. The motion and notice of hearing may be served on the alleged contemnor by mail provided mail is reasonably calculated to provide actual notice. When in doubt as to whether the contemnor will actually receive the mail, personal service by the Sheriff or a process server will always be accepted by the court. The notice must contain the following language:

FAILURE TO APPEAR AT THE HEARING MAY RESULT IN THE COURT ISSUING A WRIT OF BODILY ATTACHMENT FOR YOUR ARREST. IF YOU ARE ARRESTED, YOU MAY BE HELD IN JAIL UP TO 48 HOURS BEFORE A HEARING IS HELD.

The court must make a finding at the hearing that the alleged contemnor received notice of the motion and hearing. The moving party must then show that a previous order was entered and that the alleged contemnor or has not complied. If the alleged contemnor nor is present at the hearing the court must determine if he has the present ability to pay support and willfully failed to pay. It is not sufficient to show that he had the ability to pay at the time the judgment order was entered by the court. Proof of present financial ability to pay support must be based on proof and not speculation. If the party is found in contempt the court may impose coercive sanctions including incarceration, attorney’s fees and costs. Also, the court can impose coercive or compensatory fines.

Before the court can find contempt and impose sanctions, it must actually identify the source from which the contemnor nor can obtain funds to comply. Any coercive sanction must contain a purge provision. For example, the court can give the contemnor 10 days to pay the purge amount (usually a lump sum payment) depending on the present ability to pay. If the amount is not paid by the date set by the court, the contempt order to provide that the contempt or goes to jail for 30 days. That is the nature of civil contempt: the contemnor is given the "key to the jail cell" since the power to get released is in his hands.

In Florida, a support payment becomes vested, which means it becomes the property of the recipient party, on the date it is due; the court cannot forgive vested support payments. The court has three options for willful non-payment: hold the nonpayer in contempt; enter judgment (with or without a finding of contempt) or under extreme circumstances refuse to do anything. It is rare for a judge to refuse to enforce support.

The Law Offices of West Palm Beach divorce and family law attorney, Jessica Mishali is highly experienced in handling motions for contempt. We are dedicated to protecting your rights with professional excellence. Please contact us at (561) 833-2772 or contact us online for a consultation.