Luvourdaughter said:
Thanks! One more question, why would we be over our heads? Thats the same thing the lawyer said! We have gone around this visitation issue for close to 9 yrs now. We have always represented ourselves. But this is in criminal court, alittle different. Noone will give specifics. Can you guys give some??
Maybe I can post on the criminal boards?
My response:
California traditionally classified contempt proceedings to enforce civil judgments as "quasi-criminal" in nature, giving the obligor-citee some, but not all, of the constitutional rights of a criminally accused.
However, for purposes of the citee's federal constitutional rights (e.g., the proper burden of proof), the crucial inquiry is whether the contempt is "civil" or "criminal" in nature. This issue is not determined by the "label" given the proceedings by the court or by the pleadings, or by whether the district attorney participates in the case. Rather, the answer turns on the penalties imposed on the contemnor . . . because criminal penalties cannot be imposed on a person who is denied criminal due process protections. [Hicks v. Feiock (1988) 485 U.S. 624, 632-633, 108 S.Ct. 1423, 1429-1430; International Union, United Mine Workers of America v. Bagwell (1994) 512 U.S. 821, 826, 114 S.Ct. 2552, 2556]
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 character of the relief imposed is "thus ascertainable by applying a few straightforward rules" (Hicks v. Feiock, supra, 485 U.S. at 631-632, 108 S.Ct. at 1429; International Union, United Mine Workers of America v. Bagwell, supra, 512 U.S. at 827-828, 114 S.Ct. at 2557):
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. On the other hand, if the contempt matter is purely civil in nature, the citee's due process rights are a matter of state law. [Hicks v. Feiock (1988) 485 U.S. 624, 108 S.Ct. 1423]
As stated above, the "label" given the contempt proceedings by the court or the pleadings is not determinative of this issue; nor is California's traditional "quasi-criminal" classification of contempt proceedings to enforce civil judgments. Rather, whether the contempt citee must be afforded due process rights under the U.S. Constitution turns on the nature of the relief imposed.
Even in a purely civil contempt proceeding, however, California law guarantees the citee some (but not all) of the due process rights of a criminal defendant. In this respect then, the citee's rights may be broader than required by the U.S. Constitution.
On the other hand, a contempt is civil (remedial) in nature if the contemnor is ordered imprisoned only until he or she performs an act ordered by the court ("conditional sentence" or "determinate sentence with a purge clause"); or if ordered to pay a "compensatory" fine to the other party; or if ordered to pay a fine to the court unless he or she performs an act required by the court's order ("conditional fine"). [Hicks v. Feiock, supra, 485 U.S. at 632-633, 108 S.Ct. at 1429-1430; International Union, United Mine Workers of America v. Bagwell, supra, 512 U.S. at 828-829, 114 S.Ct. at 2557-2558]
"Mixed relief" proceedings:
In a "mixed relief" proceeding, where both civil and criminal penalties are imposed, the "criminal feature of the order is dominant and fixes its character" (i.e., the contemnor must be afforded all the constitutional protections). [Hicks v. Feiock, supra, 485 U.S. at 638, 108 S.Ct. at 1433, fn. 10]
Procedural dilemma:
Using the above analysis in a child support contempt matter, one California appellate court perceived two practical problems with the U.S. Supreme Court approach (see In re Feiock (1989) 215 Cal.App.3d 141, 145, 263 Cal.Rptr. 437, 440, fn. 6):
First of all, neither the parties nor the court knows what type of contempt proceeding (civil or criminal) is involved until judgment is pronounced, producing "innumerable logistical nightmares, not to mention due process problems." [In re Feiock, supra, 215 Cal.App.3d at 145, 263 Cal.Rptr. at 440, fn. 6; see, e.g., In re Kreitman (1995) 40 Cal.App.4th 750, 755-756, 47 Cal.Rptr.2d 595, 598-599--210-day jail sentence in child and spousal support contempt reduced on appeal to maximum 180 days because contemnor had not been advised of, and did not expressly waive, constitutional right to jury trial (applicable in serious criminal contempts but not civil contempts];
Further, because the consequences of a civil contempt are potentially greater, "the procedural protection in those cases should be the same or stronger." [In re Feiock, supra, 215 Cal.App.3d at 145, 263 Cal.Rptr. at 440, fn. 6]
Thus, the appellate court in Feiock concludes the "preferable rule" may be to apply the more stringent due process protections whenever the contemnor faces the potential for any jail time. [In re Feiock, supra, 215 Cal.App.3d at 145, 263 Cal.Rptr. at 440, fn. 6; but see In re Kreitman, supra, 40 Cal.App.4th at 755, 47 Cal.Rptr.2d at 598 (contra)--rejecting contemnor's argument that possibility of substantial term imprisonment triggers automatic right to jury trial]
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. [See County of Santa Clara v. Super.Ct. (Rodriguez) (1992) 2 Cal.App.4th 1686, 1693, 5 Cal.Rptr.2d 7, 11, fn. 8--"On the record before us we need not grapple with distinctions between 'criminal' and 'civil' contempt . . . Patently (because the Judicial Council form was used) the proceedings here were initiated and conducted under the punitive provisions of (Ca Civ Pro § 1218)" (parentheses added)]
Even the Rodriguez court (above) acknowledges a matter that would otherwise be a criminal contempt may be converted to a civil contempt if the court clarifies at the outset that the citee in any event will not be imprisoned. [County of Santa Clara v. Super.Ct. (Rodriguez), supra, 2 Cal.App.4th at 1693, 5 Cal.Rptr.2d at 11, fn. 7]
IAAL
