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Civil Contempt, Criminal Contempt, and Motions to Show Cause - Part 2



In this episode of Law Talk, Tonya Graser Smith joins Bill Powers in a discussion regarding the differences between Criminal and Civil Contempt, possible penalties and sanctions for each, and the real-world application of the NC family laws to disputes.


When it's by consent, like I said, you agree to those terms. When it's not by consent, the way you obtain it is you have a trial and you present one side of the case. The other spouse presents the other side of the case. The other party presents the other side of the case. And then the judge determines what the judge finds to be as factual in listening to both sides of that story and the judge then applies the law to those facts that the judge finds to be true and then the judge says, "And this is what you're going to do going forward. Here's your directives. Here's your instruction. Here's your rules and guidelines. Or I shouldn't say guidelines, but your rules going forward that..."

Bill Powers: Sure...

Tonya Graser Sm...: "...you would have to adhere by." So you get this order put in place and this says, "This is what you're going to do." So contempt comes in when people don't do what they're supposed to do, or they have an interruption of court proceedings that causes problems in the judicial system being correctly operative and respected.

Bill Powers: That's a great way of putting it. I love that. Go ahead. I'm sorry. It's just that I love the...

Tonya Graser Sm...: [crosstalk 00:07:08].

Bill Powers: I love the idea of... Because you think a summary or contempt, a criminal contempt in court if someone shows out and says something inappropriate to the judge, you don't realize that the effect or the thing that we address is the not following the decorum or following the court and so that can apply in a genre where it's the first time you met the judge actually, or second time maybe, as the case may be.

Tonya Graser Sm...: All right. Right. I agree with that. I agree [crosstalk]

Bill Powers: And I'm sorry to interrupt you because you were on a...

Tonya Graser Sm...: [crosstalk 00:07:42].

Bill Powers: It's a really good point. But I guess my question for you is... By consent orders, can there be... Or without a consent order, can there be a contempt proceeding?

Tonya Graser Sm...: There can be a contempt proceeding if the order is by consent or if the order was achieved by having a trial and a judge making the order. So what you have to have is just simply an order and that's the directive of what you're going to do going forward. So contempt comes in in kind of one way, initially. If we're talking about civil contempt, there's two types of contempt. We're talking about civil contempt is when we have that order in place and somebody hasn't done what they're supposed to do. They haven't done what is directed in the order and that's a problem. They haven't paid a certain amount of money. They haven't delivered a piece of property to the other person by a certain time and date. They haven't signed a document that's required in their order. They haven't done something that they've been ordered to do. So civil contempt comes into play when you need to get somebody to do what they're supposed to do. They need to either fix it, pay it, start doing what they're ordered to do right away.

Bill Powers: What happens and I think we see this more on front end of cases where someone will come in and say, "They won't allow me to have access to my child. They took the child. Can I have the judge held in contempt?" There's no consent and there's extensively been no preexisting order or orders. Is contempt available then?

Tonya Graser Sm...: No, it's not because the order's missing and the order is the intricate part that's needed there first when we're talking about civil contempt. Now, I'll take that as an opportunity to kind of distinguish criminal contempt because criminal contempt, there's not a requirement of an order to be in place, an order be violated, an order that's not complied by. Criminal contempt is interruption of the appropriate court proceedings and criminal contempt can also be, you're going to be punished for doing or not doing that stuff you did or didn't do. So think about cursing out the judge in the middle of the courtroom. That's going to be a disruption of the court proceedings. That's not something that the judge can allow to have court take place. Think about if you've got something... Actually, let me jump to you Bill and we'll hit the custody stuff in just a little bit.

Bill Powers: Okay. No, that's great because actually, I think you are going to kind of go in and distinguish between the criminal and civil contempt and motions to show cause because I think we see a lot of motions to show cause, and basically that means you're asking a judge to say, "Unless you defend yourself against this, you should be held in contempt to court." That's what a motion to show cause is meaning that you should come in to court and show cause why you should not be held in contempt. And I think we see a lot of filings for criminal contempt, which really should be civil contempt filings and the criminal contempt is generally used more for one thing than another is that it's a gross oversimplification but what do you think about that?

Tonya Graser Sm...: I think we really have to look at what is the problem and kind of start there. If you've got an order and you've got somebody that's not doing or not doing something that they're supposed to do pursuant to the order, then you want them to do what they're supposed to do or have them stop what they're not supposed to be doing. And so do we want to effectuate kind of a change of behavior right now going forward if that's the purpose of what we're trying to do? Whereas we've got criminal contempt, which you can actually kind of deduct by the name of the game criminal is you're going to just straight up be punished for something that you did or didn't do. We're not trying to get you to start something. We're not trying to get you to stop something. We're going to find out if you did or didn't do it. If you did, then you're going to have a punishment and that punishment is usually jail.

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