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CONTEMPT AS AN ENFORCEMENT MECHANISM
1998 National Legal Research Group, Inc.

The contempt power, backed by the threat of fines and imprisonment, can be a potent tool for collecting child support or alimony from a recalcitrant spouse. Can the contempt power be used to enforce an equitable distribution award?
,br> Part I of this article briefly explains the various types of contempt. Part II reviews the mixed authority on the availability of contempt as a mechanism for enforcing property division obligations. Part III identifies various uses of contempt, including coercion, compensation, and punishment. Part IV discusses some issues that recur when contempt proceedings are used to enforce equitable distribution awards.

I. Types of Contempt

Courts generally have inherent power, sometimes defined or limited by statute, to hold parties who disobeys their orders in contempt. See 17 Am. Jur. 2d Contempt 41, 130 (1990).

Civil and Criminal Contempt. Contempt is classified as either civil or criminal in nature. In civil contempt, the court attempts to coerce the defiant party into complying with an order by imposing fines and/or jail time that can be avoided by complying with the underlying order. See id. 166.

Efforts to enforce a property division generally involve an attempt to coerce compliance and therefore involve civil contempt. A spouse who is held in civil contempt may be confined to jail and/or assessed a fine for the purpose of coercing compliance with the order. E.g., Broadnax v. Broadnax, 558 So. 2d 929 (Ala. Civ. App. 1989) (husband who obstructed distribution of tangible assets sentenced to five days in jail, with opportunity to purge contempt by paying wife $300 as compensation); Ellington v. Pinkston, 859 S.W.2d 798 (Mo. Ct. App. 1993) (husband held in contempt for failing to pay wife funds as required by order dividing pension, and commanded to pay funds or be imprisoned until he complied with order directing payment); Hall v. Hall, 114 N.M. 378, 838 P.2d 995 (Ct. App. 1992) (upholding decision to impose fine of $500 against husband to coerce compliance with payment provisions of final decree); Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877 (Ct. App. 1992) (husband sentenced to 175 days in prison with sentence suspended on condition that he not obstruct receiver in implementing court's orders).

A court also may impose a monetary sanction that compensates the other party for damages caused by the contempt. See, e.g., Whetstone v. Whetstone (appropriate to charge husband with wife's litigation costs and fees incurred as a result of his refusal to obey court orders).

In criminal contempt, the court punishes the defiant party for disobeying an order with a fine and/or jail time which the party is powerless to escape by compliance. See 17 Am. Jur. 2d, supra, 167; Bontrager v. Sessions, 582 So. 2d 766 (Fla. Dist. Ct. App. 1991) (explaining distinction between civil and criminal contempt); Diamond v. Diamond, 715 A.2d 1190 (Pa. Super. Ct. 1998) (explaining distinction between civil and criminal contempt and discussing elements of criminal contempt).

When the contempt sanction is criminal, the accused spouse must be allowed an opportunity to offer an excuse or to present evidence in mitigation. Bontrager v. Sessions. As a matter of constitutional law, the essential procedural safeguards generally applicable to criminal cases must be afforded to the accused party. See Diamond v. Diamond (husband was not afforded procedural due process, but he waived right to challenge conviction on that basis by failing to object). Furthermore, guilt must be proven beyond a reasonable doubt. Id. (evidence insufficient to prove wrongful intent required for criminal contempt conviction).

Some authority extends procedural protections to accused civil contemnors who face a possibility of incarceration. See Redmond v. Redmond, 123 Md. App. 405, 718 A.2d 668 (1998) (civil contempt citation against husband reversed because contempt proceedings were conducted in violation of his right to counsel).

Direct and Indirect Contempt. Contempt is also classified as direct or indirect. As a general rule, contempt which occurs outside the court's presence, termed "indirect" contempt, cannot be punished summarily in the same way as courtroom misconduct that occurs in the presence of the trial judge. See 17 Am. Jur. 2d, supra, 194.

A statute that pertains to summary direct contempt does not apply when a spouse is charged with indirect contempt for failing to comply with provisions of a court order in a divorce proceeding. Sinaiko v. Sinaiko, 445 Pa. Super. 56, 664 A.2d 1005 (1995).

Misconduct that consists of noncompliance with property division obligations set forth in a decree generally constitutes indirect contempt and therefore requires at least notice and a hearing before the disobedient spouse can be punished for noncompliance. See Hartman v. Hartman, 417 N.W.2d 173 (N.D. 1987).

II. Availability of Contempt



Overview. There is a split of authority regarding the use of civil contempt to enforce obligations that are part of an equitable distribution award.

Some courts, citing constitutional concerns or the lack of statutory authority, have held that contempt is not available as a remedy, while other courts have endorsed the use of contempt as an effective way to enforce the division of assets upon divorce. Many of the cases that preclude the use of contempt have involved the failure to make monetary payments rather than the failure to make property transfers or to take other steps required by the decree. In general, there appears to be more latitude to enforce equitable distribution awards through contempt when the noncompliance relates to judgment provisions other than those calling for monetary payments. See Hartland v. Hartland, 777 P.2d 636 (Alaska 1989) (use of contempt power was appropriate for nondelivery of property; wife was not seeking to enforce a money judgment); In re Marriage of Nussbeck, 949 P.2d 73 (Colo. Ct. App. 1997) (former spouse's failure to pay money judgment cannot provide basis for imposing remedial or punitive contempt sanctions, but willful failure to comply with order to transfer property can furnish predicate for contempt sanctions); Redmond v. Redmond, 123 Md. App. 405, 718 A.2d 668 (1998) (husband's obligation to comply with divorce judgment requiring him to refinance loans on real property was not debt for purposes of constitutional provision prohibiting imprisonment for debt, so husband could be held in contempt and sentenced to jail term).

Statutory Authority. Some states have specific statutes authorizing contempt proceedings to enforce property division judgments. E.g. 23 Pa. Cons. Stat. Ann. 3502(e)(6) (West 1991); Va. Code Ann. 20-107.3(K) (Michie 1995). The Uniform Marriage and Divorce Act provides that the terms of a separation agreement relating to the division of property and set forth in the decree are enforceable by contempt. Uniform Marriage and Divorce Act 306(e), 9A U.L.A. 217 (1987).

Contempt Not Available to Enforce Property Division. Some courts have found that a state constitutional prohibition against imprisonment for debt precludes the use of the contempt power to enforce a monetary award rendered as part of a property division. E.g., Stone v. Stidham, 96 Ariz. 235, 393 P.2d 923 (1964); Bradley v. Superior Court of San Francisco, 48 Cal. 2d 509, 310 P.2d 634 (1957); In re Marriage of Nussbeck, 949 P.2d 73 (Colo. Ct. App. 1997); Kimbrell v. Secrist, 613 N.E.2d 451 (Ind. Ct. App. 1993); Haughton v. Haughton, 319 Md. 460, 573 A.2d 42 (1990); McAlear v. McAlear, 298 Md. 320, 469 A.2d 1256 (1984); see also Newell v. Hinton, 556 So. 2d 1037 (Miss. 1990) (noting constitutional problems associated with imprisoning a contemnor for failure to pay a civil debt).

Some other courts, without discussing any constitutional concerns, have held that contempt is not available to enforce property divisions (as opposed to alimony and child support). See, e.g., Goggans v. Osburn, 237 F.2d 186 (9th Cir. 1956) (settlement agreement relating to division of couple's property could not be enforced by contempt); La Roche v. La Roche, 662 So. 2d 1018 (Fla. Dist. Ct. App. 1995) (property division awards may not be enforced by contempt; the only remedies available are those of a creditor against a debtor); Taylor v. Taylor, 653 So. 2d 1126 (Fla. Dist. Ct. App. 1995) (obligations incurred by a party in a marital property settlement are not subject to enforcement through contempt proceedings); Coleman v. Coleman, 539 N.E.2d 34 (Ind. Ct. App. 1989) (plain meaning of decree showed that payments were property settlement and thus could not be enforced by contempt); Burgardt v. Burgardt, 474 N.W.2d 235 (Minn. Ct. App. 1991) (husband could not be held in contempt for failure to make installment payments under dissolution decree because a judgment that requires payment of money is not enforceable by contempt proceedings); Seablom v. Seablom, 348 N.W.2d 920 (N.D. 1984) (under civil contempt and execution statutes, contempt is an improper remedy for enforcement of a property distribution).

Contempt Available to Enforce Property Division. A number of courts have found no constitutional problem with using the contempt power to enforce monetary obligations in property divisions. See, e.g., Smith v. Smith, 703 So. 2d 418 (Ala. Civ. App. 1997) (husband could be found in contempt for failing to satisfy an income tax debt as required by parties' divorce judgment which incorporated separation agreement allocating tax liability to husband); Ellington v. Pinkton, 859 S.W.2d 798 (Mo. Ct. App. 1993) (order to pay money as part of division of marital property may be enforced by contempt proceedings because obligations arising from marital relationship do not come within constitutional prohibition against incarceration for nonpayment of debt); Harris v. Harris, 58 Ohio St. 2d 303, 390 N.E.2d 789 (1979) (provisions relating to property division do not constitute "debt" within the meaning of the term as used in the constitutional prohibition against imprisonment for debt); Sinaiko v. Sinaiko, 445 Pa. Super. 56, 664 A.2d 1005 (1995) (court order awarding attorney's fees could be enforced by contempt and incarceration without violating state constitutional prohibition against imprisonment of insolvent debtors); Hanks v. Hanks, 334 N.W.2d 856 (S.D. 1983) (contempt may be used for failure to pay money as well as for failure to transfer property to accomplish property division in divorce proceeding without violating state constitutional prohibition against imprisonment for debt).

Some courts, without mentioning any constitutional concerns, have approved the use of contempt as a mechanism for enforcing property divisions. E.g., Carr v. Carr, 108 Idaho 684, 701 P.2d 304 (Ct. App. 1985) (trial court may enforce its order regarding property division with contempt proceeding); In re Marriage of Ramos, 126 Ill. App. 3d 391, 466 N.E.2d 1016 (1984) (property settlement provisions of dissolution decree are enforceable through contempt proceeding); Elliot v. Elliot, 431 A.2d 55 (Me. 1981) (court had inherent power to enforce judgment's disposition of property through contempt); Schaheen v. Schaheen, 17 Mich. App. 147, 169 N.W.2d 117 (1969) (husband could be found in contempt for refusing to convey property in accordance with divorce judgment); Collins v. Collins, 898 P.2d 1316 (Okla. Ct. App. 1995) (division of property may be enforced by contempt proceeding); cf. Hall v. Hall, 114 N.M. 378, 838 P.2d 995 (Ct. App. 1992) (exercise of contempt power permissible where property division payments are intended to meet recipient's support needs). Some authority expresses the view that contempt is an available mechanism but should be used only after attempting other remedies. See Gerau v. Gerau, 927 S.W.2d 441 (Mo. Ct. App. 1996) (trial court has discretion to require party seeking contempt to make reasonable efforts to enforce obligations by other remedies before entering contempt order); Mastrantoni v. Mastrantoni, 242 A.D.2d 825, 661 N.Y.S.2d 874 (1997) (trial court lacked statutory authority to hold husband in contempt for failing to comply with order to pay marital debts where record did not establish that other remedies would be ineffective).

Numerous cases have simply approved a trial court's finding of contempt without directly addressing the propriety of using contempt as a way to enforce equitable distribution awards. See, e.g., Hudson v. Hudson, 521 So. 2d 40 (Ala. Civ. App. 1987) (contempt appropriate for failure to transfer title to property pursuant to decree); DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987 (1986) (husband held in contempt for failing to turn over personal property to wife).

III. Uses of Contempt

Coercion. Civil contempt may be used to compel compliance with a variety of different aspects of a property division, as recent cases illustrate:

To obtain payment of a monetary award. E.g., Ellington v. Pinkton, 859 S.W.2d 798 (Mo. Ct. App. 1993) (contempt proceeding to obtain amount of money that husband owed to wife as her share of his pension plan); Hall v. Hall, 114 N.M. 378, 838 P.2d 995 (Ct. App. 1992) (husband held in civil contempt for failing to comply with decree that awarded bulk of property to him and installment payments to wife).

To obtain a remedy for nondelivery of property pursuant to a decree. Compare Broadnax v. Broadnax, 558 So. 2d 929 (Ala. Civ. App. 1989) (husband held in contempt for obstructing wife's attempts to obtain possession of household items awarded to her and for altering vehicle before delivering it to her), with Watson v. Watson, 696 So. 2d 1071 (Ala. Civ. App. 1996) (proper not to hold wife in contempt for failure to return rifle scope where trial court credited her testimony that scope was not on rifle when she took possession of it and that she did not know whereabouts of scope).

To obtain payment of debts assigned to a spouse by a decree. E.g., Smith v. Smith, 703 So. 2d 418 (Ala. Civ. App. 1997) (husband could be found in contempt for failing to satisfy income tax debt allocated to him by parties' divorce judgment); Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991) (wife held in contempt for failing to pay IRS debt); McKinley v. Iowa District Court for Polk County, 542 N.W.2d 822 (Iowa 1996) (wife held in contempt for failing to make mortgage payments as ordered by divorce decree).

To obtain clear title to property awarded in a decree. E.g., In re Marriage of Cierny, 187 Ill. App. 3d 334, 543 N.E.2d 201 (1989) (husband found in contempt for refusing to execute quitclaim deed as per court-approved property settlement agreement); Merzon v. Merzon, 225 A.D.2d 664, 620 N.Y.S.2d 832 (1994) (husband found in contempt for failing to transfer deed for marital residence to wife).

To deal with a spouse's efforts to hamper measures ordered by a court. E.g., Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877 (Ct. App. 1992) (husband held in contempt for preventing receiver from marshaling assets and for taking other steps to block sale of assets).

To obtain compliance with a provision requiring a spouse to refinance property. Redmond v. Redmond, 123 Md. App. 405, 718 A.2d 668 (1998) (husband held in contempt for failing to comply with terms of divorce judgment requiring him to refinance loans so as to remove wife's name from obligation).

Compensatory Damages. Civil contempt may also be used to seek compensation for damages attributable to a spouse's disobedience of the property division provisions in a decree. See, e.g, Divine v. Divine, 769 S.W.2d 847 (Mo. Ct. App. 1989) ($1,500 fine was appropriate where husband removed improvements on realty awarded to wife and refused to turn over property awarded to her; fine was permissible even though it exceeded total costs of items since it was related to wife's actual damages); Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877 (Ct. App. 1992) (husband could be charged with wife's litigation costs and fees incurred as a result of his refusal to obey court orders; compensatory contempt permits award to party who is injured by contemnor's action to restore party to original position).

The amount of compensatory damages awarded in a civil contempt proceeding should be based on the actual damages caused by the noncompliance with the decree. See Doyle v. Doyle, 815 P.2d 366 (Alaska 1991) (award of money damages of $1,000 per item of personal property that husband had failed to return to wife was inappropriate sanction for contempt because amount of award did not correlate with wife's actual damages and costs); Hartland v. Hartland, 777 P.2d 636 (Alaska 1989) (damages for husband's failure to transfer stock to wife should be measured by difference between stock's value when she would have sold it if he had complied with order and its value when she actually sold it within a reasonable time after receiving it). But see Collins v. Collins, 898 P.2d 1316 (Okla. Ct. App. 1995) (wife's request for monetary damages for husband's refusal to comply with divorce decree had to be addressed in separate action from contempt proceeding because state statute limited sanction for indirect contempt to $500 fine and six months in jail).

Punishment. A fixed fine or jail term can be used to punish a spouse for contempt as long as the procedural requirements for criminal contempt are met. See, e.g., Kim v. Kim, 170 Misc. 2d 968, 652 N.Y.S.2d 694 (Sup. Ct. 1996) (husband's deceit in failing to disclose gifts given to his alleged paramour and to his relatives and in overstating his expenses warranted finding of contempt and a fine of $10,000).

Modification. Contempt proceedings cannot be used for the purpose of modifying a property division. Cowart v. White, 698 N.E.2d 1223 (Ind. Ct. App. 1998) (redistribution of property under guise of exercising contempt power was impermissible modification of final judgment); cf. In re Marriage of Davis, 292 Ill. App. 3d 802, 686 N.E.2d 395 (1997) (attempt to hold husband in contempt for not paying assigned debt was not improper effort to modify final decree).

IV. Issues in Contempt Proceedings

Ambiguity and Vagueness. A spouse who is determined to avoid compliance with an equitable distribution decree may try to raise any ambiguity or vagueness in the decree as a potential defense in contempt proceedings. See Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986) (general rule is that order must be definite as to duties imposed and command must be express rather than implied).

For example, in a Florida case, an order required the husband to take all action reasonably necessary to reinstate his sponsorship of the wife's membership in a country club. The husband wrote a letter notifying the president of the club that he wished to renew his sponsorship of her membership, but she was not granted membership. The trial court held the husband in contempt on the theory that as a board member he could have done more to procure her membership. The Florida appeals court held that the original judgment was insufficiently clear and definite to support the citation for contempt. The husband could not be held in contempt for failing to comply with any mandate that was not evident from the final judgment, the appeals court said. Miranda v. Miranda, 566 So. 2d 16 (Fla. Dist. Ct. App. 1990).

In an Arkansas case, however, an order requiring a wife to pay her portion of IRS indebtedness was held not too indefinite to form the basis for holding her in contempt even though the order did not set minimum payments or a final payment date. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991).

Willfulness. Willfulness is one of the elements of criminal contempt. Diamond v. Diamond, 715 A.2d 1190 (Pa. Super. Ct. 1998). Lack of willfulness is a defense in a proceeding for civil contempt. See Novak v. Novak, 245 Neb. 366, 513 N.W.2d 303 (1994) (failure to comply with obligations of property division decree must be willful to support finding of contempt). In civil contempt proceedings, the burden is on the spouse who has not obeyed the decree to show that the noncompliance was not willful. See Cannizzaro v. Cannizzaro, 186 A.D.2d 776, 588 N.Y.S.2d 912 (1992) (disobedience of order to turn over personal property to husband was sufficient to sustain finding of civil contempt without requiring proof that disobedience was willful or deliberate).

Whether the alleged contemnor acted willfully is a question of fact, but the trial court's finding on the issue must be supported by evidence in the record. See, e.g., McKinley v. Iowa District Court for Polk County, 542 N.W.2d 822 (Iowa 1996) (evidence warranted determination that wife's decision not to make mortgage payments stemmed from her disagreement with decree rather than from her mental illness or lack of funds); Mastrantoni v. Mastrantoni, 242 A.D.2d 825, 661 N.Y.S.2d 874 (1997) (hearing required to resolve factual dispute in contempt proceeding as to whether husband's default was willful); In re Marriage of Patchett & Patchett, 156 Or. App. 69, 964 P.2d 1114 (1998) (evidence did not support finding that wife acted willfully to prevent husband from reclaiming pet wallaby where testimony showed that pet wallaby occasionally escaped from cage, husband did not explain why he could not retrieve wallaby, and wife testified that she checked on wallaby every day).

Inability to Pay or Purge. Sanctions imposed for civil contempt will not be upheld if the guilty spouse does not have the ability to purge the contempt. The spouse charged with contempt has the burden of showing such an inability. See Hudson v. Hudson, 521 So. 2d 40 (Ala. Civ. App. 1987) (wife was properly found in contempt for transferring her interest in marital property in attempt to thwart divorce decree; order that she clear title to property or suffer monetary penalty was not abuse of discretion absent showing that she was unable to purge herself of contempt); Krogen v. Collins, 21 Kan. App. 2d 723, 907 P.2d 909 (1995) (husband failed to carry burden of showing that compliance with order to turn over personal injury settlement would be impossible merely by denying ability to produce the funds); Sinaiko v. Sinaiko, 445 Pa. Super. 56, 664 A.2d 1005 (1995) (a finding that husband had sufficient means to comply with court order to pay award of counsel fees was not abuse of discretion).

The inability to comply must not be attributable to the spouse's own actions or inaction. See Brown v. Brown, 305 Ark. 493, 809 S.W.2d 808 (1991) (court rejected husband's claim that he was unable to comply with divorce decree where the inability to pay was of husband's own making).

Punishment Versus Coercion and Compensation. Not infrequently, a spouse found in civil contempt challenges the monetary sanction on the ground that it constitutes punishment and therefore is not an appropriate sanction. For example, in DeGrace v. DeGrace, 147 Vt. 466, 520 A.2d 987 (1986), the husband raised such an argument when the trial court ordered him to pay a fine in the amount of the value of personal property that he had failed to turn over to the wife. The Vermont Supreme Court held that the fine was compensatory and hence permissible. The wife had testified in detail about the value of the property, and the husband could purge the fine by returning the property, the court reasoned.

Advice of Counsel. A spouse may not rely on advice of counsel as a defense when charged with contempt for failing to comply with a property division order. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989) (husband could not raise advice of counsel as defense against contempt charge challenging his failure to transfer stock to wife).

Violation of Pendente Lite Orders. Courts disagree as to whether a spouse may pursue a contempt charge after final judgment for prejudgment conduct that allegedly violated a pendente lite order restraining asset transfers. Compare Krogen v. Collins, 21 Kan. App. 2d 723, 907 P.2d 909 (1995) (after final decree awarding wife part of husband's personal injury settlement, husband could be held in contempt for violating restraining order that precluded him from disposing of the settlement funds), with Sletager v. Sletager, 97 Or. App. 448, 776 P.2d 584 (1989) (wife could not maintain contempt proceeding where she claimed that husband's prejudgment transfers in violation of pendente lite orders made it impossible for her to collect monetary award).

Impact of Appeal. Courts have reached differing conclusions about the availability of contempt as an enforcement mechanism during the pendency of an appeal challenging a dissolution decree. Compare In re Marriage of Mathews, 70 Wash. App. 116, 853 P.2d 462 (1993) (husband could be held in contempt during his appeal of dissolution decree where he failed to seek stay or do something other than ignore orders contained in dissolution decree), with In re Calacio & Gebrayel, 121 Or. App. 329, 854 P.2d 981 (1993) (husband's appeal of dissolution judgment rendered wife's contempt motion a nullity, so wife did not thereby forfeit her right to appeal).

An appellate court may decline to entertain an appeal by a spouse who stands in contempt of the proceedings sought to be appealed. Schmidt v. Schmidt, 610 A.2d 1374 (Del. 1992) (husband did not have right to appeal property division order while he remained in contempt for failing to comply with family court order); 17 Am. Jur. 2d Contempt 226 (1990).

Bankruptcy Stay. Are contempt proceedings against a former spouse subject to the automatic stay set forth in 11 U.S.C. 362 when the former spouse files for bankruptcy? For an extensive discussion and citation of authority, see Redmond v. Redmond, 123 Md. App. 668, 718 A.2d 668 (1998). According to the court, criminal contempt proceedings are generally outside the scope of the automatic stay, but the rule is less clear for civil contempt proceedings. The court decided that the automatic stay applies to civil contempt proceedings unless the contempt proceedings do not in any way affect or touch on the debtor's property.

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