One of the great frustrations to both the law practitioner and the client comes after a court order is secured directing that a thing be done or not done, only to see the opposite occur. The premise of the American judicial system is that when Court’s speak they do so with finality and it is the obligation of the litigants to “follow” the letter of the Court’s order.
Contempt of court is defined as conduct by a litigant or his attorney tending to bring the authority and administration of the law into disrespect. It can include any conduct tending to embarrass or impede courts in the discharge of its duties. Ballentine’s Law Dictionary 3d (Lawyer’s Cooperative, 1969).
To the layperson, the most identifiable form of contempt is misbehavior in the physical presence of the court. This is termed “direct civil contempt” and usually results in a summary imposition of a fine or sometimes imprisonment at the time the Court is offended.
The more common form of contempt is “indirect civil contempt.” This is typically a violation of a Court Order outside the immediate presence of the judge. For example, a judge orders a litigant to do something or refrain from doing something (e.g., don’t take money out of your pension account; do not leave the jurisdiction) and the litigant does not comply.
Contempt is an extraordinary remedy and because it exposes the offending party to fines or punishment, including possible imprisonment, it is strictly interpreted. “In order to sustain a finding of civil contempt the complainant must prove certain elements to have occurred based upon a preponderance of the evidence (which is to say more true than not). It must be shown that the contemnor (the person alleged to have violated a court order) had notice of the order or decree he is said to have violated; that his act in not complying with the order or decree was volitional and that he acted or failed to act with wrongful intent.” Harcar v. Harcar 982 A.2d 1230, 1235 (Pa. Super. 2009). See Barrett v. Barrett 368 A.2d 616,621 (Pa. Supreme 1997); In Re Trust Under Deed of Jane E. McPeak 147 Montco L.P. 285 2010).
The “mere showing of noncompliance with a court order or even misconduct is never sufficient alone to prove civil contempt.” Lachat v. Hinchcliffe, 769 A.2d at 488. Accord Bold v. Bold, 939 A.2d 892,895 (Pa. Super. 2007); In re Contempt of Cullen, 849 A.2d 1207, 1210-11 (Pa. Super. 2004) app. den. 868 A.2d 1201 (Pa. Supreme 2005).
The order which is the subject of the contempt must be “definite, clear and specific” leaving no doubt or uncertainty in the mind of the contemnor alleged to have violated the order. Lachat, supra at 489.
Contempt issues most commonly arise in the context of support proceedings and are there governed by a statute 23 Pa. C.S. 4345. Where willful failure to comply is determined to have occurred the court has statutory authority to imprison the contemnor for six months (or until the order for incarceration is complied with). It is also authorized to place the contemnor on probation and to fine him/her up to $1,000.00. Many attorneys labor under the impression that they are also entitled to their attorneys fees for bringing a contempt petition. This is a remedy under a separate statute, 23 Pa.C.S. 4351, where the law states that awards of legal fees and court costs may be made where the person owing support “did not have good cause for failing to make child support payments on time.” A subsequent Supreme Court case, Bowser v. Blum, appears to have limited attorney awards to “special situations” Bowser, 807 A.2d 830 (Pa. Supreme 2002).
So contempt can be a tricky remedy meriting consideration before it is brought.