Contempt

[meanyjack]

So this is where 'discovery' comes in?? Jeez, forgive me my ignorance, but could you expound on that a bit?

This is where you ask for documented proof of what he claims. You said he claimed he was injured on the job. You ask for documented proof of such from the employer (accident report from work, which I would presume one would have to fill out for workers comp. purposes), receipts/documentation/et al from medical centers/hospitals sought due to this alleged injury. Or was this injury HIS fault (which he would not get worker's comp...but might still seek medical help).
You ask for any and all evidence he plans to produce to the court on the day of the hearing.
If he fails to do provide any of this, then you motion the court to compel him to provide documentation -- and/or if you asked interrogatories and he doesn't respond, then (in most courts in the US), failure to respond can be admitted into court in your favor (you should consult an attorney how to properly construct interrogatories; you want to construct your questions so they have to be answered "yes" or "no"), but not misleading.

 

[mistoffolees]

*sigh* That is NOT what I said. If one wants to get a contempt conviction, you MUST prove the "willfulness."

But THAT is not what you said, either.

You said that the person making the claim must prove willfulness. That is absolutely untrue. Take this scenario:

1. OP files for contempt because she never received support.
2. Ex never shows up for hearing

OP wins - without having to prove anything except that she wasn't paid.

Now, in a contested case, she may have to prove willfulness, but, again, that's not what you said.

 

[RemitAdvice]

This is where you ask for documented proof of what he claims.

Ok. So after I receive the summons to appear and have a date for the hearing, then I ask him (?) for his proof?

You said he claimed he was injured on the job. You ask for documented proof of such from the employer (accident report from work, which I would presume one would have to fill out for workers comp. purposes), receipts/documentation/et al from medical centers/hospitals sought due to this alleged injury. Or was this injury HIS fault (which he would not get worker's comp...but might still seek medical help).
You ask for any and all evidence he plans to produce to the court on the day of the hearing.

Okay, after we are served, correct? And I should probably do this in writing, correct? Return receipt requested or certified or something, or both for that matter...I'm sure not just a telephone conversation.

If he fails to do provide any of this, then you motion the court to compel him to provide documentation

And this is a 'Motion for Discovery'?? When would I do this? At the hearing??

-- and/or if you asked interrogatories and he doesn't respond, then (in most courts in the US), failure to respond can be admitted into court in your favor (you should consult an attorney how to properly construct interrogatories; you want to construct your questions so they have to be answered "yes" or "no"), but not misleading.

Burn. I'm going to look in to those.

 

[meanyjack]

Ok. So after I receive the summons to appear and have a date for the hearing, then I ask him (?) for his proof?

Technically, once you have filed the case, you are able to begin discovery. He's obviously aware you filed, so begin it now. I would check your rules of criminal procedure to get the exact policy/procedure in your state. Keep in mind, you are charging him with a CRIME, so there is specific due process that he is entitled to. He has a specified MINIMUM amount of time to respond, plus time for service. In many states, it's 28 days, plus 3 days for service...unless you motion the court for less time, but you must have really good cause for such.

You base your discovery on what he's told you already and/or anything else that is RELEVANT that you see fit.

Okay, after we are served, correct? And I should probably do this in writing, correct? Return receipt requested or certified or something, or both for that matter...I'm sure not just a telephone conversation.

Any discovery must be in writing...so you can dispute it on the stand, if need be. You should sent it certified with return receipt (or at least you can check online to save a few $$$). Also, you have to serve him the discovery requests on an electronic form (i.e. CD-R). Again, check the rules of procedure for specific procedure. Some states might have special "quirks" and if you miss just one, the other party can have the case delayed or tossed on the simplest technicality.

And this is a 'Motion for Discovery'?? When would I do this? At the hearing??

Nope, you do it all before. "Discovery" is a process which would include, but not limited to interrogatories and evidence.

How long has he not been paying? If it's been quite awhile, you might want to consider retaining an attorney for this. After all, you should be asking for court costs, in addition to what is owed. If you retain an attorney, you can ask for attorney's fees. Also, keep in mind if he makes himself current before the hearing, the contempt would be moot. Something else to consider as well.

 

[RemitAdvice]

From everything that I've read (and asked here)...I had the understanding that these proceedings were for civil contempt.

 

[Gracie3787]

Hold up here. The posters stating HE will have to prove his claim are not being straight-forward.

Clearly some of you have forgotten that when someone files a Show Cause for Contempt, that that person must prove their accusation(s). The OP will be the one who will have to prove HER claim that he WILLFULLY did not pay child support. Key word here is "willfully".

That is not correct. For CS a court order by itself creates a presumption that the obligor has the abilty to pay.

The obligee, (OP) only has to prove 2 things:

1. That a valid court order for support exists.
2. That the obligor has not paid as ordered.

The rest falls on the obligor, he has to prove that he had a valid reason for not paying.

Of course, it can help a CP to go into court with proof that NCP had the ability, but willfully chose to not pay. But, the burden of proof is on the NCP, not the CP.

 

[LdiJ]

*sigh* That is NOT what I said. If one wants to get a contempt conviction, you MUST prove the "willfulness."

Well, if the only payments she received all year were the two payments she got in June, and he has only been injured for a month, there is definitely some willfullness in there.

 

[my life is mine]

Gracie has it absolutely correct with VA courts.

 

[meanyjack]

Fine. Whatever. Keep suggesting to posters that they just need to file a show cause for contempt, and they just need to sit back and really put no effort into their claim to get a conviction.

Because I've seen the outcome of those who do just that. Good thing it is "free" with some of the advice some of you give.

 

[meanyjack]

Well, if the only payments she received all year were the two payments she got in June, and he has only been injured for a month, there is definitely some willfullness in there.

Good freaking Lord people. I'm not saying it's not, but that is not the point. Are some of you trying to be a clueless pain in the arse? Or does it just come naturally?
Some of you are really missing the point. maybe you'll get it the next time it comes around. Maybe.
Again, good thing advice from people like you is "free" because you'd be spending a lot of time giving refunds.

Again, my legal advice stands on what I told the OP to help her get a definite conviction. If she doesn't want to follow it, and go by what some of you post believing she really doesn't have to do much, fine by me. It isn't my case...

 

[RemitAdvice]

Wow...ok. If y'all don't mind, I have some add'l questions:

1) I had the understanding this was a civil proceeding, that the only one that could charge the obligor with criminal contempt was the judge. After he (the judge) gives the obligor certain instructions and those instructions are ignored. Is this not correct?

2) MJ states that the burden of proof (BOP) falls to be to prove his 'willfullness', hence the discovery...but Gracie says that it lays with the NCP...but that it would be in my best interest to be able to show that he had the ability to earn/pay. So I go ahead with the discovery...right?

3) My 'Request for Production of Evidence' should include the following: receipts/documentation of admittance from med centers/hospitals...from the NCP; payroll records from his last known employer...(subpoena ducas tecum yes?); and a copy of the police report, if available, of the 'accident' that caused his injury...(i think the accident occurred in a neighboring county/town, do I send my request to them or what?? Even if he wasn't charged with anything, would there still be a report, yes? Do I even have access to that sort of thing?
Is there anything else I'm not thinking of??

4) The Requests must be in electronic format (CD-R) and sent to his last known certified with a return receipt. I've tried to find the rules of criminal procedure for contempt and they mention everything above.
Furthermore, the requests should just be a formal letter outlining the information needed and should be cc'd to the respondent, correct? So that he knows of everything I'm asking for.

Am I stupid for trying this without an attorney? It's my understanding that unless he's $25k or more 'in the rears' then hiring an attorney is just taking much needed funds from my own pocket and honestly, I cannot afford it and legal aid will not help me with contempt.

Thanks, everybody, for your time.

 

[mistoffolees]

Fine. Whatever. Keep suggesting to posters that they just need to file a show cause for contempt, and they just need to sit back and really put no effort into their claim to get a conviction.

I really wish you'd quit misquoting people. No one ever said any such thing. The record is there for anyone to read.

There is a presumption of ability to pay. If support is not being paid, then the recipient can file for contempt. If the payer doesn't show up, he's going to lose. If the payer shows up, it is up to him to prove that he couldn't pay - and that claim is rebuttable.

Please stop giving incorrect advice. More importantly, please stop misquoting people.

Wow...ok. If y'all don't mind, I have some add'l questions:

1) I had the understanding this was a civil proceeding, that the only one that could charge the obligor with criminal contempt was the judge. After he (the judge) gives the obligor certain instructions and those instructions are ignored. Is this not correct?

2) MJ states that the burden of proof (BOP) falls to be to prove his 'willfullness', hence the discovery...but Gracie says that it lays with the NCP...but that it would be in my best interest to be able to show that he had the ability to earn/pay. So I go ahead with the discovery...right?

3) My 'Request for Production of Evidence' should include the following: receipts/documentation of admittance from med centers/hospitals...from the NCP; payroll records from his last known employer...(subpoena ducas tecum yes?); and a copy of the police report, if available, of the 'accident' that caused his injury...(i think the accident occurred in a neighboring county/town, do I send my request to them or what?? Even if he wasn't charged with anything, would there still be a report, yes? Do I even have access to that sort of thing?
Is there anything else I'm not thinking of??

4) The Requests must be in electronic format (CD-R) and sent to his last known certified with a return receipt. I've tried to find the rules of criminal procedure for contempt and they mention everything above.
Furthermore, the requests should just be a formal letter outlining the information needed and should be cc'd to the respondent, correct? So that he knows of everything I'm asking for.

Am I stupid for trying this without an attorney? It's my understanding that unless he's $25k or more 'in the rears' then hiring an attorney is just taking much needed funds from my own pocket and honestly, I cannot afford it and legal aid will not help me with contempt.

Thanks, everybody, for your time.

1. Yes, the judge is the only one who can hold someone in contempt. A person could be found to be in contempt for violating the original decree - it wouldn't necessarily require a second violation. However, judges often give people a warning the first time.

2. Don't listen to MJ. What you need to prove:
- a valid order exists
- you were not paid
That's it.

Now, he has the right to present refutation of either of those facts. He can also present a sob story to the court. The court can either listen or not. AND, if you have evidence that his claims are wrong, you can refute his claims.

3. That should cover it. Others may have some other ideas. I wouldn't list it to medical centers or hospitals, though. I would ask for ANY medical records and receipts related to anything that would prevent him from working for any reason.

4. Your court clerk can give you procedures.

Only you can determine if you're comfortable doing it on your own. You're right that an attorney won't be cheap, but fortunately, contempt hearings aren't horrendously expensive. You can also ask to be reimbursed for your legal expenses (but may not get it).

 

[RemitAdvice]

Ok, so I just got back from the clerk's office. The arraignment for the contempt charge filed in April is on Aug. the 26th. The clerk advised that 'if' he showed up, then the hearing would be on 9/16. She also mentioned that I should have received notice of the arraignment.

I mentioned the other contempt charge filed last week, she said she would attach that one to the current order and they would be heard at the same time...(???)

So I guess I just call to see if he shows up for the arraignment and if he does, then attend the hearing...and if he doesn't...then what??

 

[my life is mine]

I would show for arraignment, this way Judge knows that you are not going to let this drop. If he does not show up for arraignment then they may issue a warrant to appear.

Which means that if he is stopped for a traffic violation he could be held until court. They usually will not go out of their way to pick him up though. If he doesnt show for hearing 1 of 2 things can happen, Judge can do a continuance or he/she can do an order.

I would place my child support with this man in the system because then they can handle this for you completely.

 

[mistoffolees]

I would show for arraignment, this way Judge knows that you are not going to let this drop. If he does not show up for arraignment then they may issue a warrant to appear.

Which means that if he is stopped for a traffic violation he could be held until court. They usually will not go out of their way to pick him up though. If he doesnt show for hearing 1 of 2 things can happen, Judge can do a continuance or he/she can do an order.

I would place my child support with this man in the system because then they can handle this for you completely.

I would definitely show up for the arraignment. Courts are busy and a lot of judges figure that if the person can't be bothered to show up for the arraignment that they're not going to show up for the hearing, so why bother scheduling it? Besides, the facts are pretty clear. There is a court order. Ex did not file for a modification. Payment was not made. Could go directly to a court order.