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.
Narrator: You’re listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions. Attorney Bill Powers sits down with some of today’s leading legal minds to discuss everything from legal issues and legislation to practice tips and policy. Now, here’s your host, an NBTA Board Certified Criminal Law Specialist, former president of the North Carolina Advocates for Justice and renowned trial lawyer, Bill Powers.
Bill Powers: Family law matters are one of the most queried inquiries on Google. That’s understandable given that divorce affects at least 50% of all married couples. It doesn’t matter if you’re from San Francisco or the Great State of Mecklenburg or whether you’re a person of faith or a non-believer. Divorce affects more than one half of all marriages or more in the United States. The Google inquiries regarding child custody, child support, visitation, and related disputes are off the chart in part given the complexity and sensitivity, if not emotional aspects of such legal issues. The purpose of this particular topic on Law Talk is to explain big picture ideas, hopefully explain the process and the logic behind the law and how things actually work in court. Sometimes we agree with the laws and sometimes frankly, we don’t. It’s a good idea to set forth from the outset some general thoughts about the content that you’re about to hear.
First, it’s okay if you have questions. In fact, it’s a good idea to predicate big decisions on information. You’re not a bad person if you’re thinking about divorce or how divorce may affect you. It’s also okay to gather information and decide to do nothing. Good decisions often involve good information.
Second, when it comes to family law issues involving separation, divorce, equal distribution, child support, and alimony, do not rely on anecdotal evidence or advice. While often well-meaning, the information provided by friends and family is all too often flat out wrong. In some instances, following the advice of a friend or family member can cause long-term extremely adverse consequences. What worked for your best friend’s sister’s cousin likely is completely inapplicable to you, your family and your individual needs and concerns.
Third, as a result, while we may be going over some pretty complicated material today on Law Talk, each case is different. You and your legal issues are truly unique. If you have questions about what to do, talk to a lawyer, schedule a formal consultation. You, your life and your family deserve the attention of a dedicated family law attorney.
Fourth, expect to pay a legal fee for legal advice. There is no one size fits all precept in family law. You’re not going to solve a complicated legal issue with a five minute conversation over the phone. There are possible conflict areas. Lawyers have to gather information to conduct a conflict check. A lawyer’s stock and trade is their time. Don’t confuse a consultation with legal advice. They are separate and distinct. Lawyers generally aren’t going to be willing to give specific legal advice, assuming the legal liability for such unless they know the background circumstances and the facts. My guest is, in my humble opinion, one of the best family law attorneys in all of North Carolina. She’s well-versed in law, compassionate, hardworking, competitive, detail-oriented, and wicked smart. She’s also a friend and someone I respect both personally and professionally. Today, we’re joined by attorney extraordinaire, Tonya Graser Smith. Good morning Tonya.
Tonya Graser Sm…: Good morning Bill. It’s good to see you and it’s good to be here. I always enjoy talking to you about all of the different things, law and legal, and looking forward to our chat today.
Bill Powers: Well, great. Great. Well, let’s jump right in then let’s talk about one of the most widely, I think, misunderstood areas of family law even among divorce lawyers in Charlotte and that’s contempt. There’s civil contempt, criminal contempt, motions assault, show cause and things like that. You’re a board certified specialist in family law. Do you agree with me on that?
Tonya Graser Sm…: Yes, I do agree with you that it’s an issue that is misunderstood by the public, is misunderstood by many lawyers, is also misunderstood by family lawyers who are trying to use it for their clients.
Bill Powers: Right. Well, and I think personally, and again, I’m going to defer on you on this, but I think there are a fair number of people and it’s not an intentional thing that there’s just a fundamental misapplication of certain types of contempt, particularly in Charlotte. And maybe we can back up a little bit and have you kind of define and explain some of the common terms that divorce lawyers use. We do use a lot of abbreviations like ED, it stands for equitable distribution and PSS which stands for post-separation support and QDRO and Rule 11 and Chapter B or 50B. So can you kind of tell me… Now what is a motion to compel? What is a motion to show cause and contempt motions? What generally is that in family court in Charlotte?
Tonya Graser Sm…: So first of all, let me backtrack a little bit and talk about how you get a court order. You get a court order by either agreeing with the other person on the terms to resolve your matter and you ask a judge to sign off on that court order, that’s commonly called a consent order, meaning that both of you all consented to what was going to be in there and what terms were going to govern you going forward. Specific with family law, what terms are going to govern your children? What custody schedule are you all going to have? What child support amounts are you going to have? When is that child support going to be paid? Is it going to be paid weekly? Is it going to be paid monthly? Which parent’s going to pay it? So it’s all of the specific terms of what rules you’re going to play by going forward.
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.
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.
Someone does not pay child support on time. Do you want to punish them and have them locked up strictly for not paying the child support on time? Or do you want to get the child support in hand? Do you want to receive the money? Which one is of more value to the pursuing person? And in child support, I would argue you always need to get the money so the way that you effectuate getting the money would be to use civil contempt and that person is locked up until they pay, until they comply. Contrast it to a criminal contempt for them, just being locked up and punished for non-payment, but not actually having to then pay the money.
Bill Powers: Sure. What’s the term called when you come into compliance? When you-
Tonya Graser Sm…: Purging [crosstalk]
Bill Powers: Purging. Right.
Tonya Graser Sm…: That’s only for the civil contempt.
Bill Powers: Right.
Tonya Graser Sm…: So yeah.
Bill Powers: And sometimes, when we talk on these things… Because it’s not just people maybe looking for a divorce, it can be newer lawyers or law students, even. You may hear, and court of appeals will refer to this in opinions, they’ll say purge conditions.
Tonya Graser Sm…: Exactly.
Bill Powers: Meaning what is it going to take for you to be in compliance of the recitation? There’s another term of art, the cradles of the court meaning that the court decrees. You see an orders ordered and judge decreed the court will make certain findings of fact and conclusions of law and how do you purge the conditions of contempt. So let’s just use a real simple example and I know each case is different so I’m going to preface that comment, but I have two questions for you. First, do you think it’s a good idea as a general sense for every technical violation to go in? Or do you try to at least work with opposing counsel or the other side? And secondly, what happens if someone perpetually is late and in purges the condition two minutes before the hearing? How do you address that?
Tonya Graser Sm…: Yeah, so the first one is it’s a discussion that you have with your lawyer. The first time that somebody’s late to a pickup or a drop off, you’ve got to weigh the costs of attorney’s fees. You’ve got to weigh your cost of time away from work to go to court. You’ve got to weigh the cost, the emotional cost on you to prepare for court and to be ready and present. Generally, it’s my opinion that if somebody’s done it once, the attorney’s fees, the emotional cost, the time away from work, doesn’t outweigh the need to go forward if there’s only been one problem. Now, if you’ve got a reoccurring problem over and over and over and over again, well then your cost-benefit analysis is different at that point saying, “Well, this is going to continue and now that it’s happened 27 times, I need to take action because I’d like it to change going forward.”
So I think that’s part of the discussion that you have with your lawyer. I think it’s also part of the discussion about what is happening and can it be proven that it is happening? There’s one component that is covered, is a more of a nuance in criminal and civil contempt and it’s called willfulness. And so willfulness, you’ll see addressed in both civil and criminal contempt is… Was the problem in the control of the person that committed the problem and had the problem? Mom was late to drop off the children to dad. Mom ends up having a flat tire. She calls Triple A. Triple A is backed up for two hours. Mom finally gets Triple A there. Triple A fixes the tire. And then mom continues to transport the children to dad, but it’s three hours late.
So was that intentional on mom’s part that she ran over a nail somewhere in a construction zone and had no idea and happened to get a flat tire on her way to drop off the kids to dad? No, that wasn’t willful. And they now contrast that with mom says to dad, “I know you need to leave by 2:00 PM for your vacation. I’m going to make sure that I drop off the kids at three o’clock so that you’re late for leaving for your vacation plans because I’m mad at you.” Now, those two are very different. The second one being that mom is willfully disobeying the court order. The first one being that things were out of her control and her being late was not willful on her part. So that’s part of the detailed discussion that you have to have with your lawyer in breaking down what actually happened. A lot of times with family law cases too, especially custody, things are harder to prove. There’s more gray area. It’s not totally black and white.
Bill Powers: Well, yeah. And I think you’re bringing up a point in one of the questions I want to ask you, because I think there’s a difference between a technical North Carolina family law, and how they’re applied in court. In fact, they are differences between jurisdictions. How something may be handled in Charlotte can be different than say Iredell or Union or even Gaston County. And I sometimes think clients think that they think court is what I call my sixth grade math teacher where it’s the court’s job to wrap people on the knuckles when they don’t follow the rules. There is an inherent necessity of reasonableness and fair play and clearly is in the best interest of the children is the overall court of appeals opinions called the Polar Star.
And there is a fair amount of counseling that goes on with clients because it can get emotional. It just can get downright nasty sometimes because you’re like, “I know this person is doing this just to hassle me. I know they were late because they wanted me to miss my airplane flight or miss Christmas with this person.” How do you balance it? You mentioned a cost-benefit analysis and I think that’s important and there is a financial aspect of things and it brings to the secondary point, can you get attorney’s fees when you file these things and what’s your experience regarding how often [those 00:00:25:44], or if they’re awarded by the court?
Tonya Graser Sm…: Yeah. And I’ll backtrack just a little bit there on that question too, is that conversation that you have with your lawyer about whether you have a matter of contempt or not is also a very real conversation in that are you willing to ask a judge to lock that other person up? In family law cases, especially custody cases, child support cases, you’re asking the court to lock up the other parent of your children and that can have negative effects on relationships with the children that can have negative effects for co-parenting that can have negative effects the ability to pay child support if someone is prevented from working because they’re serving jail time too. So those are some other factors that you have to have a detailed and deep conversation with your lawyer.
Bill Powers: I think that’s a great point because there was once a judge in Charlotte who we used to say, “Well, your honor, if you lock this person up, they’re going to lose their job and then you’re not going to see any child support.”
Tonya Graser Sm…: Right.
Bill Powers: It’s a commonly used argument sometimes to better effect than others.
Tonya Graser Sm…: And so for the attorney fee portion of that bill… If you’d asked me this question nine months ago when I was presenting on this matter in the format of a CLE, a continuing legal education class for our peers, I would have said you only can get attorney’s fees related to civil contempt. Now I have since seen attorney’s fees also result in criminal contempt and there’s been a little bit of a shift in the case law that now appears to seem to permit attorney’s fees under both. There is always new case law coming out of the court of appeals. It’s something that I would hope the court of appeals would draw a distinction and give us a little bit more of a bright line rule. But functionally speaking right now, it seems that we’re able to have attorney’s fees awarded with both that like you alluded to before is also varies from judge to judge and jurisdiction to jurisdiction even though we’re all operating under the same rules. There’s different preferences that come out of the different jurisdictions.
Bill Powers: Well on that and I don’t want to go too much over our time because I know you’re very, very busy, but it brings up another point that sometimes legal disputes can be resolved by lawyers working together. And in more than one instance, I know that I’ve gotten a call from an attorney and we talk things out. We can use the [inaudible] lingo and abbreviations, and I call the client. I counsel them, “Listen, this is what they’re threatening. If you keep doing this, you’re going to find yourself in court unnecessarily. This is how you avoid that.”
And so I think personally, there’s a reason they call us attorneys and counselors at law because part of our job is to explain to people, “You’re not necessarily just hurting yourself or your wallet. You could be harming your children and the logic behind the court is such that you need to start following the agreement or the order.” Now there are other times where there’s no reasoning with the unreasonable, frankly. How do you see your role as an attorney? You’ve been doing this a while and I think you don’t just suddenly wake up and become a specialist. It comes from living the life and walking the walk and talk, talking the talk as a professional. What are your thoughts on that?
Tonya Graser Sm…: Kind of to piggyback on what you were saying regarding contempt and lawyers, talking to lawyers, that’s the threat of contempt and I know threat is a real negative word, but something like that being held over somebody else’s head can be enough to effectuate chain with good lawyers on both sides of the case having the right conversations and having the intellectual conversations about what can and cannot happen in court. And then, like you said, Bill, counseling their clients from that point forward. And because part of our job as lawyers is to help solve problems, not make problems and we can go to court and try things all day long. And Bill’s one of the best trial attorneys in the state, if you ask me, and has traveled to what? All 100 counties?
Bill Powers: Not all. I’ve been to a lot. More than many, but not all yet. I’ve not tried a lot of cases in or if any, in Northeastern part of the state, but I have-
Tonya Graser Sm…: Almost all the counties.
Bill Powers: Well, I’ve been to Cherokee and I’ve also been to New Bern so is the from North Carolina, [inaudible] from Murphy to Manteo. I’ve been to a lot. And there are preferences and protocols and local ways of doing things. One of the things we do in Charlotte that I actually like, which I think assists in this area is that we tend to have one family, one judge. And a judge is going to start seeing the same people in court going, “Yeah, I remember this. I remember what you did last time.” And I think that goes to level of intentionality and things like that. So, well, Tonya, I do want to thank you so much for your time and I do encourage people, if you have legal questions in Charlotte Marcum County, Tonya, would you share the name of your firm and telephone number, how people may be able to reach you?
Tonya Graser Sm…: Sure. I’d be happy to. Our firm is Graser Smith and we’re located over on East Boulevard. The best way to reach us is to just pick up the phone and call us at (704)626-6795. (704)626-6795. And figure out if it’s something that we’re able to help you out with.
Bill Powers: And if listeners have additional questions on family law, my hope is that Tonya will be kind enough to continue to share her time. These issues are very complex. They’re very intricate. They tend to be fact specific. You can email us or give us a call at Law Talk and suggest ideas and topics and things of that. If you have a specific question about a case that affects you or legal inquiry, we do recommend that you obtain legal counsel immediately. So thank you so much again, Tonya, for joining us.
Tonya Graser Sm…: Thanks so much for having me, Bill. It’s always a pleasure.
Narrator: You’ve been listening to Law Talk with Bill Powers, your resource for answers to your most pressing legal questions on your time. Ready to discuss your matter now? Call (704) 342-HELP for free and totally confidential consultation. That’s (704) 342-4357. Law Talk with Bill Powers is an educational resource only. The information presented on this podcast does not constitute legal advice and is not a substitute for consulting with an attorney. Every situation is unique. Therefore, you should always consult with a licensed attorney before making any legal decisions. Thanks for listening.