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Wednesday, November 6, 2013

Are Complaints for Contempt getting Harder to Win?

A Complaint for Contempt is the action by which you can request that the Court make a finding and issue sanctions for failure of one party to meet the obligations and requirements of a Court Order or Judgment.  Sanctions can include civil fines, payment of attorney's fees and costs, modification to existing orders or judgments, or in some cases incarceration.

To succeed on a Complaint for Contempt you must prove two things: first, you must prove that there has been a "clear and unambiguous" order or judgment and second, you must prove that the other party "knowingly violated" the order.

If the Contempt involves a financial order, depending on the remedy you are seeking, the US Supreme Court case of Turner v. Rogers may also now require that you prove an "ability to pay."  Traditionally in Massachusetts the Court's have allowed "inability to pay" an order as a defense to certain enforcement attempts (such as incarceration).  This wouldn't excuse the debt, but allow a Defendant to postpone payment or make payments over time.

In Turner, the SJC seems to have moved the burden of proving an "ability to pay" to the Plaintiff, if the Plaintiff is requesting incarceration as enforcement.  In addition, Turner suggests that when a Plaintiff has assistance (from counsel or DOR), the state may need to provide the Defendant with counsel if incarceration is possible.

While the ruling does not require that the Defendant have counsel when Plaintiff doesn't have counsel, " the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order."

In Massachusetts, some Judges have expanded on this case and expressed that to find a person in Contempt now requires an express finding of ability to pay, which may need more than just a showing that Defendant's financial statement is incomplete.

We, therefore, offer the following practice tips when seeking to prosecute a Complaint for Contempt in Massachusetts:

  • Request a Financial Statement (and possibly further discovery) from the Defendant in advance of the Contempt hearing.
  • Bring a Proposed Judgment and Proposed Findings of Fact to the Contempt hearing.
  • When necessary, subpeona information regarding bank accounts or employment to assist in proving a Defendant's "ability to pay."



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