Contempt Litigation Webinar Part 2: Contempt Enforcement Pleadings, Affirmative and Defensive

Michelle O’Neil :
All right, welcome back! We are going to continue with our contempt webinar brought to you by O’Neil Wysocki family lawyers, and this session is about contempt enforcement, pleadings, both affirmative pleadings and defensive pleadings. So, we're still joined by Jere HightandKarri Bertrand with my law firm and we're joined by retired judge, Bill Harris out of the two 33rd in Tarrant County. So kicking off pleadings, pleadings are important in contempt litigation, aren't they?

Jere Hight:
They are. They're very important. That's where a lot of people mess up.

Michelle O’Neil:
Yeah. So, obviously we have the Texas family law practice manual, which is a start. It’s a start. What is important to be pled in emotion or a petition for contempt?

Jere Hight:
You want me to tell you?

Michelle O’Neil:

Yeah, you take that.

Jere Hight:

You have to a reference and attach the underlying order that for the basis of content, you have to list individually each specific act of contempt and sometimes people will mess that up. You have to identify the time, place. You know exactly what happened for each one. And then you have to, I mean that's, that's where the main area where people get messed up.

Michelle O’Neil:

Right. Right.


Judge Harris:
I always say that when I look at a contempt pleading, I look at it the same way is if, I was trying a criminal case. I would look at the information or the indictment. It has to be clear that, you know, to where the indictment wouldn't be subject to, to quash or something like that.

Michelle O’Neil:
Right. I think there was a McNamee case, on that 605 southwest second, 353, we'll post that in the comments, that said that basically you plead each count separately, like a misdemeanor complaint. I think that for family lawyers, most of them haven't done criminal laws, so I see this as a place for so many people, especially when I'm defending a contempt case, that this is a place that people kind of tend to mess this up. I mean this is a place where you can kind of trip up a party who's prosecuting a contempt.

Judge Harris:
I've seen a lot of contempt complaints that you have petitions where they say that you know that John Doe was ordered to pay child support on the first of each month beginning, so and so, you know, the first of each month thereafter and he failed to do so. Well, I mean, I know he's a bad guy, but you can't hold him in contempt over that because it's just not, it has to say he failed to pay that child support on this date, this date, this date. She failed to allow the visitation or possession access, surrender the children this date, this date, this date.

Michelle O’Neil:
Yeah, so how does a family lawyer approach pleading a contempt pleading like this if they've never done criminal law?

Judge Harris:
Well, in my opinion there's some things I've always told people to look at in orders and look at in the pleadings and you want to know that the order's valid. There are some several things on family law orders that a lot of people mess up on, and it is amazing to me how many times these things happen.

Michelle O’Neil:

So give me an example.

Judge Harris:

Motion for new trial, filed and granted. Granted on one day and then signed, the order granting the new trial. Documentaries made on one day, 31 days later, the orders said the contempt based on bet judgments void because the judge was void. I see a lot of these on the, we have had a couple of judges in Tarrant County that believed that they could reinstate dismiss cases. Cases that were dismissed for want of prosecution and they believe that they could reinstate him with a docket entry and there was never a signed order reinstating the case. Well, the ensuing judgments void. And the biggest culprit that I've seen is a terrible tool, is a nunc pro tunc judgment because people use nunc pro tunc judgments to fix screw ups. They want to call it, they say, oh, this corrects clerical error. It doesn't, it corrects judicial error because clerical error is the error that occurs from the time I render to the time it's signed and in most of our divorce custody cases, the rendition and judgment are simultaneous. So you cannot have, by definition, you can't have clerical error. If there's a misspelled name, a misspelled date, that's judicial error. You got to correct that with a motion for new trial. You can't correct it later with a nunc pro tunc and if you try the orders void and I didn't realize this until I got to doing some research on it. It's not voidable, it’s void.

Michelle O’Neil:
And a void Order is not contemptible. So Karri, you spent many years before you went to law school as a paralegal, expert drafting, and then you've gone to law school and now you're a practicing attorney. So using, kind of drawing on both of those experiences, how do you approach drafting a petition for contempt to make sure that it's specific enough to, you know, to seek the relief that you want to get?

Karri Bertrand:

Well and I was Jere Hight’s paralegal, so I was taught well and everything has to be just so, and I think the first problem I would notice in other people's pleadings is they actually didn’t even copy the order language into their pleading correctly.

Judge Harris:

I’ve seen that many times.

Michelle O’Neil:

So, let's pose this question. Is it sufficient to incorporate the whole order by reference versus quoting the order in the petition?

Judge Harris:
I think it's sufficient. I don't particularly like that because I don't like the whole order being attached, but I do believe that it satisfies, if it's incorporated attached as an exhibit, like Jere was talking about earlier. If it's just incorporates it but doesn't attached as an exhibit, I don't think so.

Michelle O’Neil:
So if it references the order, doesn't attach it as an exhibit and says it's on filing with the court, sufficient or not sufficient?

Judge Harris:

I don't think so.

Michelle O’Neil:

So, if it quotes the portion of the order verbatim but doesn't attach the orders, sufficient or sufficient?

Judge Harris:

Yes. Sufficient.

Michelle O’Neil:

I think I disagree with that because I think the code actually requires the order to be attached.

Karri Bertrand:

Jere and I always do both.

Michelle O’Neil:

Yeah. I always do both, air on the side of caution.

Judge Harris:
That's a very good idea, but I believe that if it alleges it, I think you're good enough.

Michelle O’Neil:
That’s why I love having these webinars like this with the discussion because you can have an opinion and we can talk it through and everybody benefits from both of our opinions. So okay, so then what Karri was saying is, quotes the order but makes a mistake in quoting the order. So sufficient or insufficient?

Karri Bertrand:

If it's not attached, I would say insufficient. If it is attached, it’s still Insufficient.

Jere Hight

That's a misquote the order, then you're not getting anywhere.

Judge Harris:

We call it a fatal variance.

Michelle O’Neil:

All right, so then do you have to allege specifically that the respondent knew the terms of the order?

Karri Bertrand:
It's not implied in the order language.

Michelle O’Neil:

That's my question.

Judge Harris:

I don't think so. I don't think you do because your culpable mental state on that is not you know, there's no, content doesn't give a culpable mental state. Just did you violate it?

Michelle O’Neil:
Right, but you had to know about the order. Like for example, if it was a default one, I mean, do you have to prove that he got a copy of the order? Do you have to prove that he knew about the order? I mean, or can you just contempt somebody for violating an order that they were defaulted in and never knew about?

Judge Harris:
On a default order, this is the law that presume that the clerk mailing the order, there's a presumption of delivery and therefore

Jere Hight:

I believe, yes, you can get contempt on a default order. Now, what you're saying is that you can, if the person's not in the courtroom for the contempt hearing, which I agree with, that's a different issue.

Michelle O’Neil:

Sorry I was unclear in my sentence.

Jere Hight:

There is a time where you have to pull a proof of knowledge of the order for contempt and that's when you're trying to get a third party held in contempt. You're trying to get grandma for keeping the kids away from the rightful party, you know, dad or mom. There you have to show that she actually had knowledge of the order to get contempt against her. But I don't think a party, I think a party, it's attributed to that they have knowledge of the order.

Michelle O’Neil:
So we talked about describing each act. So, you have to have a separate violation paragraph for each specific little violation of the order, right? Which can turn it, how many do you remember judge, how many is the most number of violations you've seen pled in one petition?

Judge Harris:
I've seen a couple of contempt petitions where there were over 150 violations.

Michelle O’Neil:
The most I've seen, I saw one with over I think it was 197.

Judge Harris:
Yeah, I think you're right.

Michelle O’Neil:
May have been the same case.

Judge Harris:
I’ve always told lawyers that if you're going to plea contempt, criminal contempt on it, particularly in a child support case. Pick your best three or four. I mean the ones where, they're just, no question and prove those up then shut up. You know?

Michelle O’Neil:
I think from a strategy perspective, I agree with you. I don't really recommend pleading a petition for contempt that pleads 197 violations, because there's one of a couple of problems with that. One problem is that you probably can't really prove up all 197 of them. Another problem is that a judge isn’t going to give you a trial long enough for you to prove up all 197 of them with trial limits, time limits. The other problem is that you kind of work yourself into a corner when you do that for a couple of reasons. One is, that what if one of those violations isn't contemptible and you've got only one punishment. Then you've got a void order and you're going to have the guy walk without sticking the punishment on the ones that are punishable. Then, I think the other problem is or the other strategic issue is that, you could plead three or four violations, have a trial on those because those are then subject to double jeopardy because we're in criminal land here and then come back. You know, regroup and six months later when they get out of jail on those three or four, then come back and file three or four more.

Judge Harris:
Well, I think that the former jeopardy bars a real valid concern, because there’s a variation on that where you say these contempt’s that say, and it's in the family law practice manual, based on his conduct, the petitioner believes that he will violate the orders on this day, this day, this day. Well, I've never found anybody guilty, even when they did in fact violate the order. You can't find them guilty on that and I'm not so certain that when you allege future violations, you are creating a former jeopardy bar if they do violate those revisions in the future.

Michelle O’Neil:
Right. So then requesting the contempt remedies, obviously your contempt petition has to specifically set out your, your remedies that you want your enforcement remedies, your contempt remedies. So contempt remedy would be your civil or criminal contempt punishment. So what does that look like in a request in a petition, Karri?

Karri Bertrand:

Yeah, you're going to have to state if you want jail and fines and how you want the jail time served.

Michelle O’Neil:

Okay, so on a criminal contempt it would be up to 180 days in jail. On a civil contempt, It would be I guess up to 18 months in jail or until they comply.

Jere Hight:
It’s indefinite until they complete the action you're asking them to complete.

Michelle O’Neil:
So, what if you have a contempt petition that asks for five years criminal contempt?

Judge Harris:
Oh, you can do that. You can plead for consecutive sentencing, there's two bad things about that. First is, it's going to have to be so horrible a contempt scenario, all just unimaginable that a judge is going to send somebody to more than 180 days in jail. You can do it, you can ask for consecutive sentencing and that's available. The other thing that does is the request for consecutive sentencing triggers the right to a jury trial on the contempt.

Michelle O’Neil:
Then you've just bought yourself a mess, an expensive mess.

Judge Harris:
So you're really kind of looking for trouble when you do that. I've seen, actually sentenced people consecutively for like two times, but it's just on the most aggravating circumstances.

Michelle O’Neil:
So then you also can request your non-contempt remedies. So those would include a clarification, judgment, granting a judgment, specific performance. Whatever of those non-contempt enforcement remedies that you also want. Then you can plead for attorney's fees in your contempt motion. And then you also have to have your prayer obviously. I think sometimes we get so reliant on the form book that we forget that in technical roles of pleading you have to have a prayer that sets out the exact relief you're requesting, not just a everything I've already said kind of prayer. So, anything else on the petition itself, on the affirmative requests for contempt petition? What about concurrent and consecutive? I think this is a place where it doesn't, the family law practice manual, it's not super clear on this concurrent versus consecutive question.

Jere Hight:

I always ask for concurrent, especially if I have a lot of violations.

Michelle O’Neil:

Why is that Mr. Hight?

Jere Hight:
Because well, as the judge just stated, the odds of getting consecutive sentencing is nuts and you're opening up a lot of doors that you don't want to go through if you're asking a bunch of consecutive 180 day sentencing.

Michelle O’Neil:
Because if you ask for consecutive sentences and it aggregates to more than 180 days, you're entitled to a jury trial, the defendant, the respondent's entitled to a jury trial and then you've got a problem.

Judge Harris:
I had a case right after I went on the bench. I had a client who was not always good about paying his child support and he'd been filed a contempt by the Tarrant County domestic relations office twice. And I had gone down there and worked something out for him and he felt that he was just, Oh, I was just the champ on this, I just worked something reasonable out. Well, he got a contempt filed on him right after I won on the bench. He decided that he had been down there often enough where he knew that law and he requested, he demanded, a jury trial and it was in front of a visiting judge and the visiting judge granted it. And this visiting judge was not aware of the fact that the court has to set punishment of contempt and she charged the jury on the seven counts of contempt. They said they stooped to 180 days and the Tarrant t County jail on each. He got a lot of time in jail.

Michelle O’Neil:
So what about where, let's say the petition seeks consecutive punishment and aggregates to more than six months, but in the hearing, the lawyer for petitioners stands up and says, oh, I didn't really mean that. Jury trial or no jury trial?

Judge Harris:

Jury trial.

Michelle O’Neil:

What if the judge says no jury trial but then ends up sentencing them actually to more than 180 days in jail?

Jere Hight:
Void order.

Michelle O’Neil:
So I had that happen in a case we'll post it in the comments, in Ray McRae, where the lawyer for the petitioner, pled the consecutive but then set in court affirmatively she didn't really mean it, she just meant to cap it at 180 days, but then the judge actually sentenced and left in the order. They did this fill in the blank order and left the word consecutive in the order and the judge signed it with consecutive in the order and Rhett granted void contempt and get out of jail free card. And, and the most important part is and double jeopardy attached, so you can't go back and retry. You can't, it's not like civil world where you get a new trial and you can go back and start over like you're done. All those counts again, if you pled it all 197 of them, all those counts are done. So you're finished and you gotta wait for them to violate some more. So another reason not to, not to plead everything you got in the one petition.

Judge Harris:
You may be planning to cover this later, but a lot of times there will be a defect in the pleading or there'll be a defects, you know something like Karri was pointing out, it doesn't recite the correct order, don't say anything. If you're defending it, don't say anything until the first witness gets on the stand and states their name and then move for judgment because you're done and you've got a former jeopardy bar on all those contempt counts.

Michelle O’Neil:
Well, and that is an important point that, you're actually hitting me a softball so we can move to defensive play dates. So, with defensive pleadings you know in normal civil world you have to follow a pleadings at least three days in advance of a hearing. If you're seeking affirmative relief or whatever, whatever, and give fair notice to the petitioner that you're maybe seeking special exceptions or something. But in a contempt case, you don't have those roles, right? I mean, you can file your answer the morning of. You could bench file your answer once you're in the courtroom. Right? And what you're saying is that that's probably the preferred method.

Judge Harris:
If you can see a defect, I think it is the preferred method because you get that jeopardy bar. And the law on criminal procedure is that jeopardy attaches when the first witness says their name.

Michelle O’Neil:
So in answering a contempt petition, a normal general denial answers not required. What about pleading affirmative defenses? I still think you have to affirmatively plead your case.

Jere Hight

If you found them you have to.

Judge Harris:
I believe that’s correct.

Michelle O’Neil:
So do you think, what's the timing of filing your answer with your affirmative defenses?

Jere Hight:
I don't know if you'd have to get much notice or any notice to the other, to the petitioner as to your affirmative defenses, it's not like a civil suit. I think you can still file your answer the day of trial and assert affirmative defenses.

Judge Harris:

I think I agree with that because you're talking about a criminal case here, and there's constitutional implications on all of this.

Michelle O’Neil:
So what types of affirmative defenses get pled in a contempt case? Probably depends on the type of contempt, but let's start with child support contempt. So what are some affirmative defenses that somebody might plead in a child support contempt case.

Jere Hight:
Lets say the primary conservator voluntarily relinquished that child to me, and I've been supporting this child during this time, so I shouldn't have to pay child support. That's the main one I can think of.

Karri Bertrand:
Inability to pay.

Michelle O’Neil:

In inability to pay, there's a difference between civil contempt and criminal contempt. So with civil contempt, the inability to pay is not only at the time it was due, but also at the time of the hearing and criminal contempt it's at the time it was due. Although, I think there's some case all that has made a little bit more confusion out of that, as from our splitting hairs of it, but that's my understanding of the distinction of inability to pay. Although, if I'm going to present an inability to pay defense, I'm gonna prove up that they're just broke all the way around because the code requires that its with an inability to pay, that you have to show that it's not just that I didn't have the ability to pay on this day. Like you've got to say, and I couldn't go borrow the money and even my momma wouldn't give me any money and I don't have a house and I couldn't go get a second mortgage and a don't have a he lock to get a line of credit against my mortgage and I don't have any credit cards to use to pay it. I couldn't have gone and hocked my watch and I had nothing of value that I could have taken to the pawn shop. I mean it's not just a, oh, like my pockets are bare. I mean, it goes a little farther than that. What about with say a possession contempt? What are some affirmative defenses that can be pled in a possession contempt?

Michelle O’Neil:
To me the most obvious one is the failure of a condition precedent.

Judge Harris:
That I've seen impossibility.

Karri Bertrand:

The child is too old.

Jere Hight:

The child refuses to go. I tried to get the child to go, I told the child to go and the child would not.

Judge Harris:

I tried a case where they had alleged, you know, this taste of violation and the mother had a driveway camera pointing down the driveway and the video that we played in this, was it connected with a custody trial, played to the jury. They walked down the driveway, she walks down the driveway with the children. She kisses three of them, says bye. And she walks back, leaving them at the van with their father and they just would not get in. So, you know, my thought was she complied with the possession or she relinquished possession.

Michelle O’Neil:
This happens a lot with teenager possession orders. So when you were on the bench judge, kind of what was your opinion of teenagers being teenagers and possession orders?

Judge Harris:
You know, there's a case out of Houston I think that said that you have to use everything short of physical violence. I never followed that line of reasoning. I think you have to make a reasonable effort. That's one of the reasons that a possession cases are really sort of unfair because possession cases and I'm being, you know, gender wise, it's getting where it's not quite so clear, but typically support cases it's the female receiving the support. Possession cases is the male not getting visitation. And the support cases are so incredibly easy to prove. The possession cases really aren't because you get all these factors, kid didn't want to go, the kid wouldn't get in the car. Well, how hard did you try to get it, you know? Well, how hard do I have to try it? Do you want me to, yeah, you want me to beat him? And I had a club with me. Taser em, I don't know.

Michelle O’Neil:

But whenever a teenager gets to be of driving age,

Judge Harris:

That's when they're voting with their feet.

Michelle O’Neil:

I mean I think by that point if you are having trouble getting them to come visit with you voluntarily, you kind of lost the war.

Judge Harris:
And it's really even worse than that, it’s when they turn 17 because if the judge tells him to go visit and they tell the judge to jump in the lake, there’s nothing a judge can do.

Michelle O’Neil:
Because by then they're an adult in Texas law. So what about discovery? Is discovery available in a contempt case? I don't know that this is a question that's decided. I don't think there's an answer.

Judge Harris:
I think that there's a fifth amendment problem if you're trying to discover from the contempt order.

Michelle O’Neil:
What if the respondent wants to do discovery of the petitioner.

Michelle O’Neil:
Send to an RFD

Judge Harris:
I’ve never seen that before.

Michelle O’Neil:

I’ve tried it in a case.

Jere Hight:

I think it makes more sense comparing it to purely criminal system, that would work because the state has to show their cards.

Michelle O’Neil:
I think that if it's a civil contempt too, I think that arguably discovery could be available. I don't know anything that says you can’t.

Judge Harris:
Well if it's criminal contempt case file up Brady versus Maryland motion. It's simple as that.

Michelle O’Neil:

I've never seen that done, but I might do it next time.

Judge Harris:

I've ever seen it either, Brady motion in a civil case.

Michelle O’Neil:
So we've got about two minutes left. Let's talk real quick about the constitutional implications of notice and service of process. So, Karri do you want to kick us off on that topic?

Karri Bertrand:

Sure. If you're going to try to restrict someone's personal liberty, you need to personally serve them. You need to personally serve them with a copy of your petition and with a copy of the notice of hearing and they both need to be sent or the notice of hearing needs to be signed by the judge.

Michelle O’Neil:

So what happens when the hearing gets reset?

Karri Bertrand:
You need to appear at the original setting and be ordered to reappear at the reset date.

Michelle O’Neil:

The respondent needs to be reordered to reappear, or what's the alternative?

Karri Bertrand:

You could issue the notice again, and have it personally served again.

Michelle O’Neil:

So, there's been a whole lot of cases where it gets reset and the respondent doesn't get re-served. So what happens to your contempt remedies if the guy doesn't get re-served.

Jere Hight:

They're gone.

Michelle O’Neil:

Yeah, they're gone. You can't put them in jail. So, all right, well that brings us to our 30 minutes on this section, so we are finished with this one. We're going to take a little bit of a break. Stay tuned. Our next one is on proving and defending the contempt case in trial, the strategies for handling it in trial. So we will be right back.

Michelle O’Neil:
Keep in mind that this is a webinar that's aimed at attorneys. This is for continuing legal education. If you're out there watching this webinar and you're not an attorney, we welcome you to watch it., but remember that we are not giving you any specific legal advice. We cannot comment on any specific case or situation without knowing all the facts. So, if you need legal advice, this webinar is not a substitute for legal advice. Please, please seek the advice of a lawyer as to your specific situation and get specific advice to that. Because if you rely on just what we're talking about here, we're being general, we're talking about general legal principles that may not actually apply to your situation. This is for continuing legal education only and we cannot create an attorney client relationship just through the video camera. Okay, thanks.