Punitive & Remedial Contempt of Court

You go to court, and you end up with an order both parties are expected to follow. What happens if one party violates the orders?

Probably the most common remedy is a “contempt of court” proceeding, where you file a motion alleging that the other party has violated the order, and you seek either remedial or punitive sanctions.

Contempt has many facets - the Colorado Rules of Civil Procedure, C.R.C.P. 107(a)(1), defines contempt as:

“Disorderly or disruptive behavior, a breach of the peace, boisterous conduct or violent disturbance toward the court, or conduct that unreasonably interrupts the due course of judicial proceedings; behavior that obstructs the administration of justice; disobedience or resistance by any person to or interference with any lawful writ, process, or order of the court; or any other act or omission designated as contempt by the statutes or these rules.”

As a litigant trying to get the other side to obey court orders, our focus will be on indirect contempt, conduct which occurs outside of court.

What Kinds of Violations Result in Contempt?

It is important to remember that contempt is an “after-the-fact” remedy. You need to wait until there is an actual violation of the court order before filing a contempt motion. Just because one party is playing mind games with the other and threatening non-compliance, contempt cannot be based upon threats of non-compliance.

Additionally, you should not rush into court the first time there is a minor violation. Contempt not only costs you time and money (unless attorneys’ fees are awarded), but courts take a dim view of being used for trivial or petty matters.

What this means is that if child support is due on the 1st of every month, but you don’t receive it until the 2nd or 3rd, that’s still “pretty close”. While a technical violation of the orders, you run the risk of looking bad and upsetting the court if you file a contempt motion the first time someone is late.

I typically advise my clients that if someone has a pattern of repeatedly being more than a week late with payments, that’s a viable contempt. Or if the payor completely misses a payment and refuses to make it up, that too is a good contempt.

Or in the context of parenting - if the other parent is sometimes 5-10 minutes late picking or dropping off a child, that happens, and when planning your schedule you should build in an allowance for being late. Likewise if something comes up and the other parent is 1-2 hours late, but only once, that too happens.

But if the other parent has a pattern of regularly being 30 minutes late, at some stage you could consider contempt.

Another common contempt situation in family law cases is where a spouse was ordered to do something by a certain date - refinance or sell a residence, transfer an account, etc, and did not do so. In that case, if he/she refuses to comply, then contempt of court may be your only option.

How long can you wait before bringing a contempt? It depends. For a continuing pattern of similar violations, I’ve seen cases where the first violation may have been as far back as 2-3 years. And under one Colorado Court of Appeals decision, the doctrine of laches (i.e. waiting too long) did not apply to a contempt brought 5 years later. In re: Marriage of Lodeski, 107 P.3d 1097 (Colo.App. 2004). However, from a purely practical perspective, the longer you wait, the more difficult the case will be to prove, and the more you risk the court believing you don’t really think of the violation as sufficiently serious, so in normal circumstances I would suggest moving for contempt within a year or so.

Can You Prove a Contempt?

Assume you have a parenting plan which prohibits a parent from talking to the kids about child support issues. Your 10 y.o. son comes home and says “Dad said I cannot play baseball this season because of all the child support he pays you.” That sounds like a pretty clear violation of the parenting plan. But can you prove it?

The problem with most parenting plan violations involving a parent behaving badly to a child is that they depend upon the child himself/herself telling you what happened. And not only is bringing in a child to testify a terrible idea, but courts often do not even allow it.

What the child told you is hearsay - an out-of-court statement that is not admissible in court. Note Note that there may be ways to trap the other party into admitting what he did, or potentially exceptions to the hearsay rule which allow a child statement to be introduced in court - this is most definitely something you would need to talk to a lawyer about.

Contempt Defense - Inability to Comply

Assume the other party was ordered to do something, but failed to do so. Is that contempt? The answer is “it depends”. While there is certainly non-compliance with the court order, it requires “willful non-compliance”. And that means inability to comply is a defense. Consider these situations where contempt will not likely work out due to the other party’s inability to comply:

• A parent is 2 hours late for an exchange of child, but I-25 was shut due to an crash.
• A former spouse lost her job, and stopped making her $2000/mo alimony (“maintenance”) payments. This may or may not be contempt, depending upon how much she has in savings, what discretionary spending she is doing (did she cut out cable TV, going out to eat, and pretty much any other recreational spending? Is she eating Ramen noodles? Is she at least paying something each month, and promising to make up the difference once she finds employment?)
• A former spouse was awarded the marital residence at divorce, and was ordered to refinance it within 90 days. Despite his best efforts, he could not obtain a refi. This would not be a contempt - and is one good reason why a well-written order or agreement will require the spouse to refi or list the residence for sale by a certain date if a refi is not possible.

Merely proving something did not happen does not make a contempt case - there must have been the ability to comply, and then the willful failure to comply with the court order.

Inability to comply with an order is an affirmative defense. What this means is that while the Court must make such a finding before finding someone in contempt, in a support case once the moving party has proven non-payment, the burden of proof shifts to the non-paying party to prove an inability to pay support. In re: Marriage of Lamutt, 881 P.2d 445 (Colo.App. 1994).

In a 2019 unpublished decision, the Court of Appeals upheld a finding of remedial contempt against a party who did not have cash, but had sufficient credit he could have tapped to make the required payment. In re: Marriage of Blaikie. A former spouse was ordered to pay $24,000 within two days, finding he had the ability to pay because he had "sufficient credit limits with which he can make payments."

The former spouse appealed, arguing he had no assets or income to pay the amount ordered, and his ability to borrow was irrelevant to his ability to pay. Under the unique facts of that case, where the former spouse customarily paid nearly all of his expenses on credit card, including $157,000 towards attorney's fees the year before, the appellate court agreed: "because husband customarily paid expenses via credit card, his available credit indicated an ability to pay."

This case is unique, and not a clear precedent to be relied upon, given that (1) it's unpublished, so is only persuasive rather than binding, (2) the facts and past use of credit are rather extreme, and (3) no transcript was provided, so the appellate court deferred heavily to the trial court findings. 

How do I file for Contempt?

The procedure for a contempt case is as follows:

1. Prepare Motion. The first step in filing a contempt case is to fill out a Motion and Affidavit for Contempt of Court (PDF | MS Word). When completing this form, be specific as to what happened:

• State exactly what the order says, and attach a copy.
• State exactly how the other party failed to comply. Don’t just say “has not paid all support”, but specify exactly what payments were missing, short, or late, and how much is in arrears (for a support case). Under the law, only conduct described in the contempt motion is properly before the court, not conduct which occurs afterwards. People v Razatos, 699 P.2d 970 (Colo. 1985).
• State why you believe the other party had the ability to comply.
• Provide evidence that the violation was willful - e.g. you asked for compliance, and the other party refused.
• Select Remedial or Punitive contempt, or both. See the discussion below for the pros and cons of each.

2. File the motion with the Court. (In El Paso County, Division R handles contempt cases, regardless of the assigned judge). Since the contempt citation may be issued ex parte, i.e. without the other party having the chance to respond, there is legally no need to serve the motion on the other side. However, the other party is entitled to know the allegations against him/her, so there’s usually no reason to play “hide the ball” - just send a copy to the other side.

3. Serve Contempt Citation. After filing, the court will issue you a contempt citation, providing an advisement date which is typically about 40 days out where both of you need to appear. Note that you must have the other side served with the citation by a process server/sheriff at least 21 days in advance of the advisement date, if not, then when you show up for the advisement the court will set a new date, and require service of process again. It is reversible error for the court to set the advisement, or hearing, prior to that deadline. Dooley v. District Court, 811 P.2d 809 (Colo. 1991).

4. Show Up At Advisement. The “advisement” is where the other party is advised of his/her rights, and asked to plead “guilty” or “not guilty” - just like an arraignment in a criminal trial. The advisement typically only takes about 5 minutes, but there are often several cases happening at once, so you will often be in court for a half hour or so. If the contemptor (the party in violation) was properly served, but does not show up for the advisement, a warrant will issue for his arrest. C.R.C.P. 107(c).

5. Mediation. In El Paso County Division R,the magistrate will almost always order both parties to mediate before the contempt hearing itself. If both parties have counsel, they will take care of scheduling it, otherwise the magistrate will send everyone to the Court’s Office of Dispute Resolution in the basement of the courthouse immediately after the advisement to set up mediation.

6. Exchange Exhibits. You should give the other side a copy of your exhibits for trial at least 7 days in advance.

7. Litigate the Contempt Hearing. This is the actual hearing where both parties put on evidence of the alleged contempt, and the magistrate decides whether it has been proven. In El Paso County, the court will typically set a one-hour hearing date, about 45-60 days after the advisement. As with every other family law matter, the trial will be a bench trial, without a jury.

8. Review Date? If a remedial contempt, the court will order the other party to comply by a specific date, and set a “review date” for both parties to show up and verify whether the order is now being complied with, and if not, to sentence the violator.

Remedial Contempt - “Go to Jail Unless”

Remedial contempt is the most common - the other side is currently in violation, and you want to force him to comply with the order through the threat of punishment, rather than trying to punish him for the past violation (which would be punitive contempt).

Before even starting, you need to make sure contempt is actually necessary - in other words, you try to get the other side to comply without needing to go through the rigmarole of a contempt proceeding. Moreover, if you try fail to secure her voluntary compliance, you’ve helped to prove the violation is willful, and you had no choice but to pay a lawyer for the contempt.

At a remedial contempt hearing, the burden of proof is the civil standard of “preponderance of the evidence” or that something is more likely than not. Or to put it another way, passing 50% likelihood is sufficient. The moving party must prove the following:

1. There was an order
2. The other party had knowledge of the order
3. The other party failed to comply with the order, and
4. The other party has the present ability to comply. A past ability to comply, even while in the past the person willfully failed to comply, would support a punitive contempt, but not remedial.

As remedial contempt is intended to secure compliance. If the court finds a party in contempt, it will typically give a deadline - must comply by a specific date, or, for example, pay a fixed amount each month. Often the court will set a review date, where everyone has to show up and discuss whether the other party is now in compliance, and if not, the other party will typically be punished (jail) until he/she complies.

In a remedial contempt, the court will also usually order the wrongdoer to pay the other party’s reasonable attorney’s fees and costs.

Finally, while the court in a remedial contempt case can order future compliance, it cannot tell a parent how to parent a child. In In re: Marriage of Dean & Cook, 2017 COA 51, the mother was found to be in contempt of court for not trying hard enough to get a reluctant teenager to see the father.

The magistrate directed the mother to impose very specific punishments on the child if the child persisted in refusing the see the father, and the Court of Appeals reversed that portion of the ruling, finding that while the parent is not a “powerless bystander”, it is up to the parent to determine which punishments would be most effective to secure compliance, not the court: “Although it might be difficult to compel a child, particularly a teenager, to comply with a court-ordered parenting plan, this does not excuse a parent from making reasonable good faith efforts to secure the child’s compliance.” ¶ 22. The court can decide after-the-fact if those efforts were reasonable, but cannot dictate in advance what they must be.

Remedial Contempt Not for One-Time Violation

In re: Marriage of Webb and Christiansen, 284 P.3d 107 (Colo.App. 2011). Parties had joint decision-making, but the mother violated that by unilaterally bringing the child to emergency room and requesting a CAT scan (the court found there was no medical emergency justifying treatment without consulting with the father). The court found the mother in remedial contempt, not punitive.

The Court of Appeals reversed the remedial contempt sanction of attorney’s fees, based upon the fact that remedial contempt requires an ability to “purge”. A remedial contempt sanction must be to force compliance, not to punish for past non-compliance: “Therefore, we further conclude that where the contemnor commits a one-time violation, incapable of being purged, attorney fees may not be assessed as a remedial sanction.” id. at p.110. As it was impossible to undo what had already happened, this was not an appropriate case for a remedial sanction.

Punitive Contempt - “Go to Jail”

“Criminal contempt proceedings are designed to preserve the power and vindicate the dignity of the court by imposing punishment on the contemner”. People v. Razatos, 699 P.2d 970, 974 (Colo. 1985).

A punitive contempt proceeding looks a lot more like a criminal trial than a civil one. The moving party’s goal is to punish the wrongdoer for what he/she already did wrong, rather than trying to secure compliance in the future. Note that if a violation is on-going (failure to pay support, for example), the moving party may bring both a punitive and a remedial contempt action.

Per C.R.C.P. 107(d)(1), in punitive contempt:

• The alleged wrongdoer has the right to counsel, and if jail is a possibility, to appointed counsel if he cannot afford an attorney.
• There is a presumption of innocence.
• The moving party must prove everything required for a remedial contempt except for the present ability to comply. But most important, the burden of proof is the criminal standard of “beyond reasonable doubt”, not simply greater than 50%.
• If the other party is found in punitive contempt, the court will punish her, either with a fine, or jail up to six months, or both. (Longer than six months would trigger the Constitutional right to a jury trial, per People v. Zamora, 665 P.2d 153 (Colo.App. 1983).

Note that the fine is, like a criminal fine, payable to the state, and not to the other party as compensation. Brown v. Brown, 516 P.2d 1129 (Colo. 1973).

Right to Remain Silent at a Contempt Hearing

At a punitive contempt hearing, the alleged wrongdoer has the right to remain silent, and the court cannot draw an adverse inference from someone remaining silent. People v. Razatos, 699 P.2d 970, 974 (Colo. 1985). In other words, as with a criminal trial, the silence cannot be used against the person.

However, this is NOT true for a remedial contempt, which is purely a civil matter. In re: Marriage of Barber, 811 P.2d 451 (Colo.App. 1991). The moving party can call the alleged wrongdoer to the stand, and if he refuses to testify, the court is free to assume the worst from his remaining silent: “Thus, we hold that the finder of fact in a civil case should be permitted to draw an adverse inference against a party who claims the Fifth Amendment privilege in response to discovery requests and to properly posed questions.” Chaffin, Inc. v. Wallain, 689 P.2d 684, 689 (Colo.App. 1984). See also Asplin v. Mueller, 687 P.2d 1329, 1332 (Colo.App. 1984) (“the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”).

Role of Jail in Remedial vs Punitive Contempt

How jail is used is an important distinction between remedial or punitive contempt. With punitive contempt, jail is immediate, and intended as punishment for a past violation, just as in the criminal justice system. Jail is a definite term of days/months, and the wrongdoer goes to jail for his past violation, even if he starts to comply with the order.

With remedial contempt, jail is a threat, and only imposed if the wrongdoer does not bring himself into compliance by the date set forth in the court order. Jail is, in theory, unlimited (practically speaking, six months is a limit), and only ends when the wrongdoer complies with the order. Because the wrongdoer “holds the keys to the jail” and can avoid jail by simply complying, with remedial contempt jail may never happen, may only be for 1-2 days, or the incarceration may last months.

While punitive and remedial contempt can be combined into one proceeding, the jail sentences must be separately imposed. In punitive contempt, the court cannot order jail, but then suspend the sentence in return for the wrongdoer complying. C.R.C.P. 107(e). That would be a remedial sanction, and requires a finding that the wrongdoer has the ability to comply. McVay v. Johnson, 727 P.2d 416 (Colo.App. 1986), and In re: Marriage of Crowley, 663 P.2d 267 (Colo.App. 1983).

Can I get Costs & Attorney’s Fees in a Contempt Proceeding?

In remedial contempt, the court may order the wrongdoer to pay reasonable costs and attorney’s fees. C.R.C.P. 107(d)(2). Note the word “reasonable” - in El Paso County, at least, it’s not unusual to see the magistrate reduce the actual fees claimed by 20-30%.

If the moving party prevails and incurred costs to participate in the hearing (e.g. flying into Colorado, hotel, etc), those costs are also recoverable in a remedial contempt. Madison Capital Co., LLC v. Star Acquisition VIII, 214 P.3d 557 (Colo.App. 2009).

In punitive contempt, C.R.C.P. 107(d)(1) only authorizes a fine and imprisonment as punishment. Accordingly, costs and attorney’s fees are not available. Eichhorn v. Kelley, 56 P.3d 124 (Colo.App.2002). There is an exception, however, for a punitive contempt where the prevailing party brought the action to enforce an agreement (separation agreement or parenting plan) which has a provision for the prevailing party to recover attorney’s fees. In such cases, the court may award attorney’s fees as part of a contempt based upon that agreement. In re: Marriage of Sanchez-Vigil, 151 P.3d 621 (Colo.App. 2006).

If the contemptor objects to the attorney’s fees, the court is required to conduct a hearing into the reasonableness of the fees. In re: Marriage of Dean & Cook, 2017 COA 51.

Direct Contempt

There is another type of contempt, which is not only rare, but something that involves the judge and an alleged wrongdoer, but not the other party - direct contempt. Per C.R.C.P. 107(a)(2), direct contempt is something a person does directly in the presence of the judge: “contempt that the court has seen or heard and is so extreme that no warning is necessary or that has been repeated despite the court’s warning to desist.”

What does this mean? I’ve never seen it first-hand, so can only tell you what I’ve read about - swearing at the judge, repeatedly disrupting court, etc.

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