We have written before about the subject of when and how a person can be in “contempt” of a court order. The word itself is riddled with often misunderstood meaning. What could be worse than having a court decide that you are contemptible?
In the past week I have been called to court to prosecute or defend two of these cases. The first instance involved a request to find my client in contempt of a custody order. The court where the matter was heard summons people to a non-record hearing where a hearing officer either recommends or denies a request for a finding of contempt. The hearings are scheduled one per hour and if you don’t like the recommendation you take an appeal and have a record hearing before a judge. The typical remedy of make up time for lost custody, an award of $118 in costs and a $200-300 fine makes it such that the game is not worth the candle. I recommended to my client to do what he wanted as Step 1 would cost $1000-2000 in attorney time and an appeal would consume that much and more. Who wins contempt proceedings? Almost without exception it is the party who has superior financial resources. The litigant with $50,000 in net earnings has twice the staying power of the one making $25,000 and the remedies are pathetically weak. So if you want to exhaust your opponent financially, spurious or weak contempt proceedings and appeals are a great way to win a custody war by attrition.
This week was a petition to enforce a prior court order in divorce. I had the enforcing side and the spouse had been held in contempt on at least two prior occasions for ignoring an order to sell a house. The most recent petition was filed after the house was finally sold while in foreclosure and the actual damages could be calculated and assessed as the hemorrhaging had ended. The petition to assess the damages had been filed almost 90 days earlier but, the Respondent waited until the day before the hearing to retain counsel. That begot a request for a continuance to prepare.
My newfound opposing counsel is resourceful. As I anticipated she came to court ready to challenge every paragraph of the petition and to assert defenses that might have had some traction two or more years ago but were effectively waived by the fact that they should have been raised in prior proceedings. But in contempt court the rules work to the advantage of the party who plays games. You see, they are entitled to a specific pleading setting forth how they violated the court’s orders. Do they have to specify their defenses? Not in Pennsylvania. The joke is on the party seeking to enforce the order because the responding party needs to do nothing except appear in court on the appointed day. So in my case, we killed three hours of time while new counsel asserted defenses and demanded “proofs” never before articulated. In candor, some of them had merit. But whether the defense arguments were good, bad or indifferent, the party prosecuting the contempt never gets to see or hear about them until the case is called. The cost of preparing a contempt hearing is always unnecessarily high because the person prosecuting the case has to conjure what the defenses might be. Why force a party to explain why he or she disobeyed a court order or put in writing the reasons their conduct did not violate the order? That would be efficient.
Then we get to the remedies. In under Section 3502(e)(7) a divorce setting you can at least claim attorneys fees. But what about damages caused by a party’s refusal to comply with a court order? You won’t find that remedy in the statute. Support law is even worse. Section 4345 allows 180 days of county subsidized imprisonment, a fine not to exceed $1,000 which is payable to the Court and up to a year of taxpayer funded probation. You have to go to Section 4351(b) to get reasonable fees and costs and you have to prove the obligor did not have good cause for his failure to comply. Once again, burden is not on the person with the duty to comply but on the person supposedly benefiting from the award. Custody violations are covered by Section 5339 and impose the same standard as 42 Pa.C.S. 2503. The action must be obdurate, vexatious, repetitive or in bad faith. Pa.R.C.P. 1915.12’s notice for hearing makes no reference to counsel fees as a remedy which, of course, creates a due process problem in its own right should an award be made.
The statute and the rules need to make it clear that failure to obey costs money and lots of it. The sanction of a fine or award for failure to comply should be monetary and have a temporal element. When the message gets out that failure costs $25 a day or $250 a day, people will pay attention. Putting parents and divorcing people in prison or on parole only punishes the taxpayer without corresponding benefit to the innocent party victimized by the non-compliance. But the starting point is to force litigants to frame the issues in writing before anyone enters the courthouse. It takes what is supposed to be a pointed procedure and dulls it beyond recognition.