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Civil Contempt, Criminal Contempt, and Motions to Show Cause - Part 5

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.

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.

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