Contempt Litigation Webinar Part 3: Proving and Defending the Contempt Case in Trial

Michelle O’Neil:


Alright, welcome back. We are now going to move to the trial of a contempt case proving and defending the case at trial. I am still joined by Jere Hight and Karri Bertrand, who are both lawyers at my office, O’Neil Wysocki Family Lawyers and also retired judge, Bill Harris out of Tarrant County. Jumping right in here, the trial of a contempt case. We’ve covered it in some of the others, but if somebody just tunes into this one portion, non-jury versus jury trial. When is a jury trial available? When is a non-jury trial available? Jere, you want to kick us off on that?

Jere Hight:
Depends on the relief sought, if they're seeking more than 180 days in jail or you get a $500 fine. If it gets above that, then you could say get a jury trial, you have a right to a jury trial and otherwise it's going to be hard to put it to the bench.

Michelle O’Neil:


And the law describes that as the difference between a petty offense and a serious offense because we're in criminal land, right? So a petty offense would then be anything less than six months. We think of that as kind of like a traffic ticket type of thing, where as serious offense is something that's more than six months. We talked a little bit about this in the prior session, but let's kind of cover it again in case somebody is tuning into just this session. Concurrent punishment versus consecutive punishment. Karri, you want to talk about that one?

Karri Bertrand:

A concurrent is going to be preferred unless you want to get into all the complications with consecutive including the jury trial and I guess making sure your pleadings are in order, as well as you've pled properly for either one.

Michelle O’Neil:

So with consecutive punishment, if it aggregates to more than the six months, then it would be in the jury trial territory. Judge, have you ever had a jury trial and a contempt case in your 24 years or so on the bench?

Judge Harris:


I have not, I brought a jury over once with a pro se that demanded a jury trial, but he did it for a delay and I had the jury there in 22 minutes. So he looked at the jury and decided he wanted me hear the case.

Michelle O’Neil:


They looked more scary than you, that's interesting.

Judge Harris:


I've never tried to jury trial to contempt case to the jury.

Michelle O’Neil:


So if your pleadings say six months for each count to serve consecutively but the petitioner gets in the trial and stands up as the respondent says, well then I want a jury trial and the petitioner says, wait, what? Wait never mind. I don't mean it just asked for a trial amendment to just say concurrent up to six months max. Do you think that's jury trial or non-jury trial?

Judge Harris:


I think you're right to jury trial is already triggered by the pleadings, the pleadings before the court is what you have to look at, I believe.

Michelle O’Neil:
Okay. All right.

Karri Bertrand:

The judge brought up an interesting point though when you said he had a pro se cause you have the additional issue of having to give them the right to counsel advice and I've seen that happen where they get it reset because, oh wait, I want a lawyer.

Michelle O’Neil:

So when does the right to counsel invoke?

Judge Harris:


Uh, I think if you're being deprived of liberty, it's invoked. I think if you’ve got one day in jeopardy it’s invoked

Michelle O’Neil:


And so would you appoint counsel then?

Judge Harris:


Yeah, I always did Michelle, simply because I think technically the judge can have an indigency hearing and find the respondent indigent or not indigent. To me it was just always a simpler, easier solution to appoint counsel and then if the tax costs or something like that is a remedy. Just because when you're talking about a criminal case, appellate courts in Texas have a history of dislike of criminal cases coming out of, criminal contempt, coming at us civil courts and historically some of the decisions, they're rather hostile towards the contempt cases. So, I think the judge is just looking for trouble if he doesn't appoint a lawyer.

Michelle O’Neil:


And I would assume as a judge in a contempt case, you want the record to be as clean as possible. So what's the burden of proof at trial, Jere?


Jere Hight:


It's beyond all reasonable doubt, that's what it is. What it always is, the burden of course, is on petitioner.

Michelle O’Neil:

Jere you're so funny, you've been a lawyer a long time.

Jere Hight:

Yeah. Too long maybe.

Michelle O’Neil:

You've forgotten more than you remember. So what does beyond a reasonable doubt mean?

Karri Bertrand:

There's a question.

Michelle O’Neil:

Yeah, what does that mean?

Judge Harris:
We’ve pondered it for several hundred years.

Michelle O’Neil:


So in a normal civil case, you've got preponderance of the evidence. And then in some issues in a civil case, it might be clear and convincing evidence. And then in a contempt case it's more, I mean, beyond a reasonable doubt is the criminal standard. Right? So you know in the grand scheme of the spectrum of burdens of proof, I've always thought of it as, as preponderance of the evidence is like 50% plus a little, plus a smidge, just barely tipping the scale in favor. And then clear and convincing, I think of more as kind of like that 75%, more likely than not.

Judge Harris:
Exactly, moving the scale. The way I was taught in law school was propounded.

Michelle O’Neil:

That was a long time ago.

Judge Harris:

Oh, long time ago, where we had, I remember reading my stone tablet that I had. Preponderance is any movement of the scale in your direction. Clear and convincing is a substantial movement where you know it creates a firm, like the definition says, a firm belief and then I think beyond a reasonable doubt, you have to push it all the way down.

Michelle O’Neil:


Yeah. I always thought of beyond a reasonable doubt is like 99%

Judge Harris:


Well, I think the term that a lot of the criminal case use is moral certainty.

Michelle O’Neil:

Moral certainty. Moral is a great word. Moral. So, how in reality, judge, you're in a trial, your charged was sitting there listening to the evidence, you know, there's a petitioner who's prosecuting the contempt, there was a respondent. You know, let's say it's not a clear cut case that usually happens like on a child support. Let's say it's, you know, something that's not so clear cut. How do you know, as a judge, when the petitioners done enough to get to that point?

Judge Harris:


I think it's maybe, it's almost like the feeling I get from it is, it's almost like the Supreme Court justice that said he knows pornography when he sees it. I know reasonable doubt when I see it. And I can't tell you why, I can't give you any specifics. I think the judge has to rely on his sense of fairness and adherence to his oath.

Michelle O’Neil:


So it's basically a persuasion that you see enough evidence in your scale just goes down to a point where I know what happened, I'm convinced. What about on the other side of the case? Whenever a respondent is defending a case and presenting evidence on affirmative defenses, obviously the burden on an affirmative defense is not beyond a reasonable doubt. So is it preponderance?

Judge Harris:


I'm not sure the legal standard they applied to, maybe clear and convincing.

Michelle O’Neil:


So how do you know as a judge, as you're sitting there listening to this evidence and the petitioners trying to get you all the way to beyond a reasonable doubt, and the respondent is saying, no, I've got these defenses. Like let's say one of them was failure to comply with a condition precedent or something. You know, how do you know when a respondent has shown enough to say, prove their affirmative defense?

Judge Harris:


Again, I think it's that if you create a doubt in my mind as to well, involuntary inability is not a good example because that's just all but impossible to prove. And the appellate cases hold that out, but on a lot of these other defenses, I just think if it creates a doubt in the mind of your trier then you got there.

Michelle O’Neil:


So then the affirmative defense, whatever that standard would be, would be creating the reasonable doubt.

Judge Harris:


I think that's what the whole purpose of the affirmative defense is to create the reason or to point out the reasonable doubt.

Michelle O’Neil:


Gotcha. Gotcha. Alright, so the respondent, does he have to be there in person? I mean can a respondent to a contempt case just not show up and hide out, Karri?

Karri Bertrand:

No negative, no. They must be present. Must be present to win or lose or go to jail.

Michelle O’Neil:

Sowhat if you have Jere, what if you have your prosecuting a contempt case and you've got a respondent, you've served them with the notice, personally served them and they don't show up. What do you do? Can you proceed with your contempt case without them there?

Jere Hight:

No, what you do is you ask the court to issue a capias, take them, arrest them and force them to appear at the contempt hearing.

Michelle O’Neil:


So I have a case where the respondent lives in another state and got served but lives in another state. We'll a Texas capias be effective in another state, Judge you have an opinion on that?

Judge Harris:


The court's capias says to the sheriff or officer in the State of Texas. I don't think so. Now I know that on a lot of like Ritz and things like that, although it says it's directed to peace officers in the state of Texas, for example, Oklahoma will enforce those like on Habeas Corpus and things like that, but on an arrest warrant or a capias warrant. I'm not sure about that.

Michelle O’Neil:


I've never had one that an out of state law enforcement would enforce and from what I understand, the reasoning to be is that when you're in another state, then they have to go through extradition procedures and that state isn't going to spend their resources extraditing and going through the hearing process of extraditing, somebody from one state to come to another state to defend a child support case or a civil type of of contempt case. So that’s always how it's been explained to me is that they're just not going to go through all that.

Judge Harris:


I think it's the same way with a lot of criminal warrants. If you get a misdemeanor warrant out of state, an out of state agency may arrest a person and hold them for a reasonable period of time, but they're going to make you come get them. They're not going to send them back.

Michelle O’Neil:


Alright. So the petitioner cannot proceed against the defendant in abstentia, the respondent must be present to win. If they're not present, you asked the judge to issue a capias at which then causes them, a capias is just a civil arrest warrant basically, the name of a civil arrest warrant. And so then the capias is executed to bring that respondent before the court and they're held in jail, I guess. And if the, let's say they're picked up at eight o'clock at night, obviously the judge isn't going to show up at the courthouse at eight o'clock at night, so they're put in jail. So then what's the process once a respondent is picked up on a capias? What's the process? Let's assume it's a child support contempt for dealing with that capias in the hearing thereafter.

Judge Harris:


Well they have to be brought before the court and I believe on the child support they have to be brought before the court within three days. And the court either sets a hearing and orders are detained or they have to be released on bail.

Michelle O’Neil:


Doesn’t the capias have to have an appearance bond set in it?

Judge Harris:


Yes.

Jere Hight:

I thought if they're in jail waiting for the original hearing, I thought that, and your probably right because you're a retired judge, but I thought it was good by the next business day they had to appear before the judge.

Michelle O’Neil:


So here's what I think it is. I think that the capias has an appearance bond and they can post the appearance bond. If there's not an appearance bond in the capias, they have to be brought within 24 hours for a bond to be set.

Judge Harris:


If there's no appearance bond, right. If the capias sets a bond, which Jere’s’ right, it usually does.

Michelle O’Neil:

Right, it usually does, should ought to. And then I think there's a requirement that the hearing be held kind of post haste, very quickly if they're in jail, so that they can have their speedy trial like you do in a criminal case. If the respondent has an appearance bond in the capias, let's say it's $1,000 and the respondent gets his mommy to come down there and pay the thousand dollars so he can get out of jail and go home. Then what happens if it's a child support contempt? What happens to that appearance bond?

Judge Harris:


You know what happens.

Michelle O’Neil:


I know I'm throwing you a softball judge. What happens?

Judge Harris:


Well, even if he's found not guilty of contempt, you can still grant an arrearage judgment, which is a preponderance, you know, you just have to prove that some wasn't paid. You don't have to prove any contempt stuff. So that bond is probably going to be forfeited through, it'd be applied to the child support.

Michelle O’Neil:
That same role doesn't necessarily apply to possession contempt or other types of contempt, it would be more like a criminal bond where it could be returned. Right?

Judge Harris:


I think that if there's evidence offered, the court is required on a finding of contempt. The statute says the court shall award reasonable attorney's fees and costs. And I think that that's where that that bond money would go on a procession case.

Michelle O’Neil:


Yeah, because it's the burden hand money. So how, if you're the petitioner in trial in a contempt case, how does the petitioner go about proving their case beyond a reasonable doubt? Like what are some types of evidence, Karri, you want to weigh in on this one? Like what are some evidence, you know, how would you go about trying the trial?

Karri Bertrand:


So if it's child support, for example, you're going to want a copy of the Attorney General's register. You're going to want to put the respondent up there probably and ask them questions about, you know, is this the order? Have you been ordered to pay child support, you're going to prove up the actual order language with the respondent and then obviously enter as to nonpayment with the register.

Michelle O’Neil:


So typical trial procedure, in other words, a contempt trial, proceeds just like any other trial. Right? So you'd have witnesses, you’d have exhibits. You mentioned the child register from the Attorney General's office. How do you get the child support register into evidence? Trick question.


Karri Bertrand:


You can have the Attorney General, the attorney for that section of the office present at trial to authenticate that record or you could have filed a business records affidavit prior.


Michelle O’Neil:


Would it be Jere, do you think it would be provable as a certified public document?

Jere Hight:


If it's certified I think you can, they used to certify them. Some officers would, and now they've gone away from that, which is very frustrating. I mean there's the public record exception, which is if you are a entity of the state and you're required to maintain certain public records for mass consumption and that is what you're offering, then you can try to get it under that exception. I And I think that works.

Michelle O’Neil:


So you probably can get it in just as a public record. What about calling the respondent to testify, Karri? Does self-incrimination apply?

Karri Bertrand:

The judge is going to admonish the respondent as to their fifth amendment rights not to testify and if they don't, you should probably ask the judge to do so.

Judge Harris:

Yeah, very important.

Michelle O’Neil:

So let me ask you this, judge. What if there was strategically by the petitioner, just a pleading for civil contempt and not criminal content? Does self-incrimination apply?

Judge Harris:


On a civil contempt?

Michelle O’Neil:


I mean, I don't know why anyone would do that but

Judge Harris:


Civil contempt would be more like you want the respondent to sign an order like Jere’s talking about, that he was ordered to execute a deed and Jere sues him and says, I want him held in jail till he signs. I don't know that the rights to criminal trial attach to those.

Michelle O’Neil:


That would be my opinion is they don’t necessarily apply.

Judge Harris:

Yeah, simply because it's not, one of the things a lot of people don't realize on a contempt case is that the person receiving the child support or the person entitled the visitation is not the injured party in a contempt case.

Michelle O’Neil:


Who is the injured party judge?

Judge Harris:

The court, so technically if you file a contempt case and then say, gee, Judge, I decided to dismiss this contempt case, the judge can, I cannot imagine happening, but the judge could conceivably say, no, you don't. You’re going to prosecute this.

Michelle O’Neil:


Well doesn't the authority for that come from the Family Code says that theoretically, I've never seen it happen, but theoretically a petitioner can say, hey Judge, he's violating the order and the judge can appoint an independent counsel to investigate as a prosecutor.

Judge Harris:


That's correct, I’ve never seen it done either but you’re absolutely correct. The court has the authority to do that.

Michelle O’Neil:


Back in the day in Dallas County, there used to be the child support office. Do you remember that?

Judge Harris:

Guardian Ad Litem.

Michelle O’Neil:

The Guardian ad litem court, right. Wasn't that basically the authority for them doing it that way was it was an independent prosecutor? I mean that was really before the OAG took over that role, but yeah.

Judge Harris:


Yeah. That was the stated purpose I believe.

Michelle O’Neil:


So the respondent, does the respondent have to present evidence in a contempt case?

Judge Harris:

No.

Michelle O’Neil:


So the respondent can just stand on whether or not the petitioner proves their case?

Judge Harris:


It’s like a criminal case and what Karri was touching on earlier is if you're prosecuting a contempt case and you call the respondent, or the respondent has an attorney, who maybe didn't go to law school and allows him to testify, be sure asked the judge, would you please warn the respondent of his rights. Because if you don't, and that respondent, you know that the court's going to grant habeas corpus on that every time.

Michelle O’Neil:


But as a judge, I mean, I've never been a judge and I've never been to judges school, but I'm told that in judges’ school, they give you all kind of a little cheat sheet manual of how to conduct the contempt case. Right? And it kind of has those warnings and things in it that you're supposed to get.

Judge Harris:


Well, it does, Michelle, but I will suggest to you that there's a lot of those scripts and cheat sheets, things like that judges are given in new judge’s school, yet you see some really odd things happen in courtrooms around the state.

Michelle O’Neil:


So what if the respondent has pled some affirmative defenses? Let's, let's not say it's the inability to pay, cause I think he would have to testify in an inability to pay. Right. But can the respondent both refused to testify but offer other evidence off for witnesses or something?

Judge Harris:


No, I don't. I don't believe you can transactionally invoke in Texas. Yeah.

Michelle O’Neil:


You can't pick and choose. Well what if there was a possession contempt case and the respondents mama was there? Could the respondent call his mama to testify and prove up his defense through his Mama?

Judge Harris:


I think so. In effect, I think that would probably be a good tactical move on the respondants part.

Michelle O’Neil:


What if the petitioner attempts to call the respondent and the respondent invokes his fifth for the petitioners case? Does that last all the way through the trial or can the respondent then change his mind when it's his turn to present evidence and get up there and testify?


Karri Bertrand:


It kind of negates the purpose of waving prior because he's going to be subject to cross.

Michelle O’Neil:

Right. I mean maybe he's just waiting to see if they prove their case.

Judge Harris:


I think that's again transactional and I think that what I've never seen that happen, but I think the net result of that, it's right off the top of my head, I would say he can but if he later testifies, I believe the court can allow the prosecuting lawyer to recall him.

Michelle O’Neil:


Oh, reopen. Yeah, I mean I would think as a judge whether you can, you know, it's one of those, the idiom, just because you can doesn't mean you should. So you know, even if he can technically say, “No, I'm not testifying in your case in chief, I'm waiting till it's my turn.” I would think a judge would view that as kind of a playing games. Yeah. And that might backfire on him. Judges are the determiner of the credibility of witnesses, right, judge?

Judge Harris:

Yes, that's true.

Michelle O’Neil:

So that might backfire on him from that standpoint. So how would a respondent to contempt go through proving up, say conditions precedent? Let’s say it's a medical enforcement and with medical enforcement for the unreimbursed medical, there's some requirements for conditions precedent before the petitioner can recover. So, what if the respondent was saying, you know, those conditions haven't been met. How from an evidentiary standpoint could a respondent try that issue?

Jere Hight:


Well it's difficult to try because you're almost proving a negative in a lot of ways. One, I think those provisions are unenforceable by contempt because you're talking about a percentage applied to an unknown number. How is that going to meet the specificity that you need to meet slave in any case like that? So, I don't really think that burden's going to ever fall to the defendant. I think it's going to be the petitioner who's going to try and fail to get there.

Judge Harris:

Yeah, I think it's absolutely correct. When you start talking about medical expenses, you're going to have to prove unknown providers, unknown dates and all this other stuff and I think what your remedy on that is wait for the prosecution to put on their case and move for judgment on those counts.

Michelle O’Neil:


Right and then we talked about this a little bit in the last session, but what about a teenager? If a petitioner sues for contempt over a teenager who won't go on a visit and a respondent is defending that, if I were a respondent defending that I would plead impossibility of performance. But how would a trial like that, how would a petitioner prove up enough to prove contempt on a teenager possession? And how would our respondent avoid contempt on the teenager possession?

Jere Hight:


The one time we've talked about today where if I was respondent, I'd be getting ahead with the evidence because if you just sit there and say nothing, then all the court's going to consider is, you know, supposed to be on this time didn't show up and there you go. And what that respondents going to do is put forth all the evidence and witnesses and recordings of all the times they tried to get their darling little child to go and they said, “Hell No.” Or actually left the house at the right time, driving off, and just never went to dads or even got to dads because you see this sometimes and then immediately got in their car or walked home and all those, you know, the only way the court's going to hear that is if you put on evidence.

Michelle O’Neil:

Would you call the child?

Jere Hight:

If the child is 17 absolutely.

Michelle O’Neil:

What if the child's 15?

Jere Hight:

Probably still yes, if it means I'm going to jail.

Michelle O’Neil:


Well and again, I asked this in the last session, but you know, would discovery be available? Could you depose the child so that you don't have to put the child on the witness stand in the trial? Could you take a deposition?

Jere Hight:


I mean if I'm the defendant I think you got a lot better chance of getting the benefit of discovery then if you're the petition.

Michelle O’Neil:


Yeah, I don't know what says you can't is kind of my point on that.

Judge Harris:


I don't know what says you can't put a child on the witness stand.

Michelle O’Neil:


Well, I mean I agree with that, but I think from a practical standpoint, I've even tried criminal cases where we took depositions. I mean, I don't think that anything says you can't take a deposition just because it's criminal contempt case.

Judge Harris:

Under the code of criminal procedure, it’s more difficult to take a deposition obviously, but I think you're right. I think you can.

Michelle O’Neil:


I mean, if you needed to preserve evidence for some reason or if there was some extenuating circumstance, like it's a kid, I don't want to call my teenage kids to testify in the case where somebody is trying to put me in jail, you know? And you might do better with a deposition.

Jere Hight:


I know two current Tarrant County courts that will not allow that. The child is going to take the stand regardless of age.

Judge Harris:


Hmm. Yeah. That was my policy is if you call the child, I just did the common law predicate if the child was under age seven, they were presumed incompetent. If they were seven to 14, I had a hearing on their competence.

Michelle O’Neil:

Whether they know right from wrong and that type of thing.

Judge Harris:

That's a very funny story on that.

Michelle O’Neil:

Do you want to share?

Judge Harris:

They had a story I read in the Bar Journal years and years ago by the judge Buckmeyer, may he rest in peace. It’s talking about a Judge questioning a child witnesses to her competence and he said, he asked her several questions and he said, “Do you know how important is to tell the truth?” She said, “yes.” And he said, “Do you know what will happen if you tell a lie?” And she said, “You will go to hell.” And the judge said, “Is that all?” And the child said, “Isn't that enough?”

Michelle O’Neil:


That's great. So, we got about a minute left. What are some practical tips, Judge, that you would give to litigants, particularly respondents for avoiding jail time?

Judge Harris:


I don't really, I mean these cases are so fact driven. When it's a nonpayment of child support, first thing I would say is try to avoid a trial, get all the money you can together and try to make peace with the petitioner beforehand, at least have something to offer. If it's a possession and access case, just do the best you can. Hope for the best.


Michelle O’Neil:


Yeah. What about you Jere? Do you have any tips for trying a contempt case or defending a contempt?

Jere Hight:


One thing the judge pointed out in an earlier session, is the idea that if you've identified some error in what the petitioner has done, just sit on it.


Michelle O’Neil:


That was an interesting question. I actually had that written down for us to talk about. So from an ethical standpoint, do you think that it's ethical for a respondent's attorney to sit on error, you know, to wait until the first witnesses called to say, “Hey there's a defect in the pleading.”

Judge Harris:


I do, in fact, I think it required because you have a duty to your client as their representation and I think that if you identified an error that is an acquittal type error.

Michelle O’Neil:
Get out of jail free card. Yeah. Then you must, you can't bring it up. Like if you bring it up and let the other side correct it. Yeah. That, that is unethical, right?

Judge Harris:

I believe that's correct.

Jere Hight:

There's no requirement for special exceptions in criminal works, there’s just not.

Michelle O’Neil:

I think that's important because I think the standard is probably, well I know it is different in like a normal divorce case, if you're going to complain about a pleading in a normal divorce case, the complaining party has an affirmative duty to file special exceptions and get a hearing and have it heard. But in a contempt case, it's the opposite. It's like criminal law. You actually have an affirmative duty not to bring it up until you're in trial when double jeopardy attaches. Yeah. Alright.

Michelle O’Neil:


Well that wraps us up for this session. We are gonna move on to drafting contempt orders after the hearing, so stay tuned we'll be right back. 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.