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Civil Contempt, Criminal Contempt, and Motions to Show Cause - Part 3



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.


Bill Powers: Well, there are several different... I'll call them hotspot areas. I don't know how you refer to it in your practice. Being perpetually late and dropping off a child or children, not paying child support in a timely fashion, not paying the specified amount or missing a major holiday like Christmas or Thanksgiving, or maybe speaking ill of the other parent and kind of subverting that relationship or just flat out not following what's been agreed upon regarding where a child would go to school or a doctor's AC. Kind of break some of those down if you would and what your thoughts are on that.

Tonya Graser Sm...: So we go to the point of, are we trying to get somebody to comply with the existing order to do what they're supposed to do that's already written out? Or are we trying to punish them for something that they've done? And that's kind of the simple way that I break it down is we're trying to get them to comply and get back on track or are we trying to just punish them for the misbehavior in the past essentially? and so when we break that down to... Let's start with custody, we've got mom and we've got dad and mom fails to drop off the children to dad's house. If mom has done that intentionally, dad can pursue civil contempt or criminal contempt. Civil contempt would be if mom does not drop off the kids ever, ever, ever again and dad wants to comply her to do what she supposed to do under the order, which is drop off the kids.

Now, dad could also seek criminal contempt. Let's say she didn't drop off the kids one time, but then thereafter continue to drop off the children so it's not an ongoing problem, but there was a problem in the past. So in that situation, you can see criminal contempt and you can punish for the failure to abide by the order that one time in the past. Do you see the difference how or essentially ongoing versus kind of a one-time deal is one of the distinctions between the civil and the criminal? Now, let's not be confused here. When I talk about criminal contempt and being punished, I mentioned earlier that means going to jail most of the time. Civil contempt also has the penalty of going to jail. The difference is civil contempt because we're trying to comply somebody to get back on track is that they are locked in jail until they get back on track, until they fix the problem that they've had.

Lawyers commonly use the term, "They hold their own keys to their jail cell." They're able to unlock themselves from their jail cell anytime they want by doing what they need to be doing from the beginning.

Bill Powers: Sure.

Tonya Graser Sm...: Now, when we contrast that with criminal contempt, criminal contempt is just the straight up punishment, meaning you're going to be punished, you're going to be put in jail for a certain number of days and you're going to be in jail for that certain number of days and that can be up to 30 days per bad act. So if there's one curse word at the judge, that could be 30 days. If there's another curse word at the judge, that could be an additional 30 days. So those can also compound pretty quickly if there's a problem that breaks loose.

Bill Powers: And about it for the record, I think you and I would both agree that it's not a good idea to ever do that, let alone repeatedly, and I've seen it happen.

Tonya Graser Sm...: No. No. [crosstalk 00:16:22].

Bill Powers: I've seen it happen.

Tonya Graser Sm...: It's the easiest and probably the most animated example we can use for criminal contempt.

Bill Powers: Right. Right.

Tonya Graser Sm...: So it's an easy illustration [crosstalk]

Bill Powers: Right. And go ahead.

Tonya Graser Sm...: If we put that in the frame of child custody, let's say there was three times that mom didn't drop off the children to dad so that could be 30 days plus 30 days plus 30 days for each act of defiant behavior there.

Bill Powers: Well, there is a... In my mind in seeing how judges operate in court, there's a reluctance to in every instance even if a technical violation to find someone in contempt, there's a learning process and things happen, cars break down, school lets out late and things like that. And there is a disparity, I think, even in amongst practitioners about whether or not you can file for both criminal and civil contempt at the same time. I happen to believe that you should be able to because in some matters, you're trying to remedy an ongoing problem in the future and in other instances, you want to punish for not following the court's ruling.

And I use an example of if you're perpetually late on dropping someone off, two minutes late, five minutes late, you want in the future... It's not a major violation, but in the future, you want to avoid that. But you miss Christmas or you miss a major holiday or a birthday, that's not something that you can get back. What are your thoughts about that? Because I know that in Charlotte, at least there is when you file for these things, there is a preference. At least that's what I've been told, not picking one or the other.

Tonya Graser Sm...: So it comes down to what we want. Do you want to enforce somebody complying with the order and doing what they're supposed to do going forward? Or do you want to just straight up punish them for misbehavior of the past? And there is a specific statute in our contempt statutes that says you cannot be held in civil and criminal contempt for the same act.

Bill Powers: Right. Right

Tonya Graser Sm...: So you can. Now, what's interesting Bill there is you can say, "For act one, we want criminal and we want punishment. For act two, we want civil and we want compliance to be achieved going forward." So it can be broken down between the specific acts, but the acts themselves, the individual can not be held in civil and criminal contempt for the exact same act. So sometimes there's an election of what are you trying to achieve? I think the best illustration for that in what you're trying to achieve is with child support.

<< Part 2 | Part 4 >>

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