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Civil Contempt, Criminal Contempt, and Motions to Show Cause - Part 4

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.

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?

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