Contempt Litigation Webinar Part 4: Considerations in Drafting Contempt Orders

Michelle O'Neil:


All right, welcome back. This is the contempt webinar brought to by O'Neil Wysocki Family Lawyers. This session we are going to talk about considerations in drafting contempt orders. So we've already talked about enforcement in general. We've talked about affirmative defense of pleadings, we've talked about the trial of the case. So now we're gonna talk about drafting the contempt orders. I'm joined in this session by two lawyers in my office, Jere Hight, one of my partners and Karri Bertrand, one of my associate attorneys. And they're going to help me present to you on this issue of drafting contempt orders. So, all right, Jere. I have you and Karri here very specifically to help me talk about this because I know how particular you are in drafting orders in general, and I know you’re particular in contempt drafting. So, what are some important things about drafting an order that find somebody in contempt?

Jere Hight:


Well, it's going to mirror in many ways your petition in that it needs to identify the order that was enforced, the specific language. Then it needs to break down each individual violation and whatever the finding of the court and the ruling of the court is for each violation independently. You can't lump anything together or it's going to be void. That is the area to put the most emphasis, it should be a finding of contempt or that contempt might be suspended. Depending on which way you go, if it is suspended there'll be terms of suspension. Then you're going to have an attorney judgment. I mean, that's the basic outline.

Michelle O'Neil:


Basic outline, basic framework. All right, so the order itself, finding contempt, has to be clear and specific, right? What if the order grants probation, like how do you draft a probation order?

Jere Hight:


Well, you still find the violation of each specific, but you write down each violation specifically still you hold the person in contempt and you commit them and then there's just a suspension of the commitment, and then you have your prohibitory terms. And those are usually continued compliance. If there's a child support, there'll be an arrearage. They'll be often court costs and fees associated, attorney's fee sometimes are thrown in there, there's the list of what they have to do or their suspension is going to be withdrawn and they get to go to jail.

Michelle O'Neil:


What about an oral contempt motion? Is that allowed? I mean, can the judge just say from the bench, like I find you in contempt and sentence you to jail?

Jere Hight:


No. It needs to be in writing.

Michelle O'Neil:


What's the timing of that? You know how we are as lawyers. You have a trial in a normal case and the judge issues a ruling and then you come back to the office and you tell your staff, hey you need to draft an order on this. And maybe next week they'll get around to it. Are the rules of the same in a contempt case?

Jere Hight:


Not at all, the contemptor is entitled to an almost immediate order and so as a practitioner, you should always take an order to the court that you're going to want signed that day. And that's both going to be your contempt order and if there's commitment, your commitment order and they both had to be signed by the court. Does it have to be signed contemporaneously with the granting of the ruling? No, it does not. But the timeline between when the ruling is and when the order's put in place is not defined under Texas law. Three days is too long. It's not proper if it's three days, so you might as well do it while you're there and try to get it all signed off on at the time. And from I know what you've seen many times as an appellate lawyer, that's a hurried bit of drafting and often times people make mistakes and the mistakes are fatal and they end up with a void orders. Because they don't take their time, and I know you could speak about that for a long time cause you've done that, you’ve voided some of those orders.

Michelle O'Neil:


Let me ask you from a practical standpoint as a trial lawyer, I mean how do you know what the order should look like when you go down for the trial? I mean can’t a judge do something that you didn’t necessarily predict. I mean how do walk into a trial on a contempt case with an order already prepared?

Jere Hight:


Well you already know the violations you're asking that the court hold the person in contempt for. So, all those should already be put out in your order. The court's either going to fine, yes, I hold them in contempt for that violation or not. If so, you just strike through it and then you're going to ask for, let's say you're asking for jail time, some people put blanks there because we don't know what the judge is going to do. And then you'd have to be very specific and careful with the judge and have them go through each line and say, what amount of time are you finding for this? And I always asked for concurrently, so I don't have consecutively or concurrently there as an option. Why? Because I think you can get in trouble in this moment when you're trying to get the order put in place. So, I just have it all concurrently, I don't have to worry about that and then it just comes down to the fine and you can put a blank there too, you know it's going to be up to $500 for each offense. And you know, the judges usually wants to be done with you after they make the ruling, but if he can hold their attention and get them to go through that, it's going to protect their ruling and you're going to get an order in place that'll hold up, which is important.

Michelle O'Neil:


Which is important, obviously you don't want to go through the whole trial and then make a mistake in your order and not be able to make it stick.

Jere Hight:


Right, and as attorneys, we're all very, we won great and we want to get out the door, but this is the one time where no, you need to stick around and make sure you get it right, even if it's annoying the judge.

Michelle O'Neil


So, I had a case one time where I defended a guy who was held in contempt and the contempt order that they took with them down to the courthouse had a whole bunch of blanks in it. And what they had done, they had too many alleged violations and it was for things like failure to pay the private school tuition on temporary orders and failure to pay child support, failure to pay medical reimbursements, all these different, not just a typical child support of like 10 months of nonpayment. It was like different parts of the order that were violated and everything. And they had fill in the blanks for the fine, well the problem is that the judge in her haste of filling out this order after she sentenced this guy to jail, where it said the fine of and a dollar sign and a blank, she probably accidentally, or at least I'm presuming accidentally, put in those blanks the actual number, the amount of what he had failed to pay.

Jere Hight:


So, she confirmed the arrearage in the fine section.

Michelle O'Neil:


Yeah, she put the arrearage number in the fine and that's the order that got entered. So, for example, on the private school tuition, I don't remember the exact number, but let's say it was $6,724. Well that's the number that she put in for the fine. So those fines were all illegal fines and they were void and then in that same case, the guy had asked for a jury trial at the beginning of the trial because the petitioner had pled for consecutive punishment and their order had, like you just said, had concurrent/ consecutively for the judge to pick. Well the judge didn't circle either one and so it was presumed consecutive. So, I mean that was a fairly quick and easy writ that we filed and won because you know, the order was wrong 10 ways to Sunday, you know.

Jere Hight:


In taking a step back, if you want to go back in time where I think those attorneys might've chosen some different paths, I would not mix my child support enforcement with let's say enforcement of payment of school, unless it has a lot of child support language around it is not contemptible, you know, I mean they're mixing in some really bad claims with some good claims and that's foolish because you're going to get your whole order thrown.

Michelle O'Neil:


You want your contempt, like as a petitioner, you don't want to go to all this effort and then not make it stick. So plead your two or three or four best violations that you know you can prove no shadow of any doubt, like beyond a reasonable doubt is the standard. Like you know, you've got him on those and don't plead the ones that are questionable. I think as attorneys sometimes we want to plead everything you got and in other contexts that's probably strategically advisable, but in the contempt context, it's not necessarily advisable to put everything you got in there.

Jere Hight:


With people, I think as family lawyers we're so used to just normal enforcement and we forget the higher standard and we forget the specificity that you have to have in the underlying order and the order you create coming out of that for contempt. And it can't just be, well we know what the order meant and so the judge can kind of figure it out. I mean like you said that it gets really easy for the appellate court to toss it.

Karri Bertrand:


You and I have seen that issue with attorney's fees being lumped into the judgment, as far as like the private school tuition, whatever the attorney's fees ward got in there too. And it's like, no, you can't hold him in jail for contempt of attorney's fees that were awarded at the contempt trial. It doesn't even make sense.

Michelle O'Neil:

Right, right, right. So, you have to be, I mean, obviously that's why we're having this discussion because your contempt order has to be so super careful to avoid getting set aside. So, what about the term of the punishment? What’s the level of specificity that has to be drafted in the order on the term of punishment?

Jere Hight:


Are you talking about how much jail time the person has? I think for each violation you have to have the accompanying period of time committed, if the court finds any, and again, you have to distinguish whether it's consecutive or…

Karri Bertrand:

Concurrent.

Jere Hight:

Concurrent. Thank you. I was for some reason blanking on the word and as we've discussed in some of the other sessions, it's so much safer to do it can concurrent, especially if you're asking for six months for every violation you need to make a concurrent. If you're asking for two days for four than it's okay to do consecutive years. Yeah, it's going to be okay.

Michelle O'Neil:


So, you mentioned a minute ago the commitment order. What's the difference between a contempt order and a commitment order?

Jere Hight:


Well, the commitment order is the order that instructs usually a sheriff to take possession of the contemptor and go put them in jail, so it's very specific. It's ordering whatever your locality's entity that does that to do that. The contempt order is the order that's holding and finding the contemptor in contempt. So I think have to be two separate orders, don't they?

Michelle O'Neil:


I've seen them done in one.

Jere Hight:

I mean, I wouldn't do it that way.

Michelle O'Neil:

I wouldn't either. To me, best practice is to have those separate because it doesn't make sense to me that you have the contempt order that's going through, I sustain on these violations or I deny these violations, I punish you by putting you in jail for 30 days. It doesn't make sense to me to then go on and say, “and dear Sheriff please take this person into custody.” To me, it's just logical that those should be separate orders. Although, I think that there are some orders that get drafted with both in it. And I don't know that it's necessarily void, to be so wrong. But to me it's just best practice to have them separate.

Jere Hight:

I've always done them as separate.

Michelle O'Neil:

So, what if you have a contempt order that orders the guy held in jail and the guy goes to jail, the Judge says, “Bailiff take him into custody,” and off he goes and the commitment order never gets signed?

Jere Hight:


I think the commitment order has to be signed, it's the commitment order that orders them to jail. It's not the order for contempt. So, I would argue that he's free and he shouldn't be being held without a commitment.

Michelle O'Neil:


So besides falling a writ of Habeas Corpus in the appellate court, is there any remedy you would fall in the trial court if that happened? Karri?


Karri Bertrand:

You could move to vacate the order and get them out.


Jere Hight:


That's exactly what you do because that commitment order has to be signed within a period of time. If he's been in jail for four days and that thing hasn't been signed, he's going to be out of jail and that's going to be it, he's going to be out of jail.

Michelle O'Neil:


Right. So, what about a suspended contempt order? Let's talk through, you have your contempt trial, the judge finds him in contempt. The judge then says, you know, I sentence you to 30 days in jail, suspended for a year, and then starts putting some terms and conditions in there. So first question, is there a limit or a guideline on what types of terms and conditions the Judge can order or can the Judge just order anything?

Jere Hight:


I don't think the judge can order anything. I think it has to be related to the enforcement action. And then you can tag on some, cost of court can be added in there, compliance with existing orders can be added in there and then if there's an arrearage order to be, if it’s child support and there's an arrearage order and it's ordered to be paid a certain amount of, uh, that that's going to be in there. That’s all that's coming to me off the top of my head. No, the court can't say, “You have to cook me breakfast every day to stay out of jail.” It has to be related to the underlying lawsuit.

Michelle O'Neil:

Yeah. You have to cook me breakfast, that'd be great. We should suggest that next time. So then let's say the judge enters a contempt order and it has a suspended sentence in it and then the respondent doesn't comply with the suspended sentence. What happens then? What do you do as a trial lawyer?

Jere Hight:


You file a petition to revoke suspension.

Michelle O'Neil:


And so what are the petitioners duties and what are the respondent's duties in a petition to revoke?


Jere Hight:


Well, the petitioner needs to serve notice of that on the respondent, have a hearing, gets responded to the hearing, established that he failed to meet whatever he was supposed to be doing. And again, have a commitment order there to send him immediately to jail for whatever that sentence was, 30 days, six months whatever it was.

Michelle O'Neil:


And so at that hearing, the standard is just whether or not you violated the probation. You don't have to go back and retry the contempt. Are there things that you should not put in a contempt order, Karri?

Karri Bertrand:


You mean as far as like the attorney's fees, judgment should not be short of the coercive get me out of jail language.

Michelle O'Neil:


Sure, like in case we recently had. I've granted the other side attorney's fees and you must pay them as part of your condition.

Karri Bertrand:


We've seen some pretty sloppy orders where literally there was violations in there that weren't ordered. There were fees in there that shouldn't have been. I don't really know how they got the judge to sign it other than the judge they don't read it I guess. So, you need to catch it as the attorney for the respondent.


Michelle O'Neil:


so what about, I had a case one time where there was an order to pay child support and the law had changed between when the case had been filed and when it went to trial and the legislature increased the max guidelines for child support. And so, in the contempt order for the nonpayment under the order, the judge then went on, found him in contempt, all this and then went on to say, and your child support is increased to the amount of the current law.

Jere Hight:


No, that's going to be void. You can't modify an order in for contempt enforcement action, they're two separate lawsuits.

Michelle O'Neil:


And I've seen so many people violate that. I mean, I've seen that messed up in so many contempt orders where you're going along trying the lawsuit like we do in as family lawyers, but you forget that maybe you have a contemporaneous modification pending. And a lot of times we see what, or at least what I've seen is you have a modification filed and a contempt filed but the content gets heard very quickly and maybe it gets tried. I've seen them tried with a temporary orders hearing, you know on the modification, where they get tried at once and then like it's kind of this dump it all in kind of order and that's a mess, don't do that. You know, because it's going to void your contempt order. We'll post it in the comments but that was the Enray M.A.M. case that said you can't modify in a contempt order.

Jere Hight:


And if you are having multiple proceedings at the same time, enforcement and a modification, split your orders. Have your contempt order and have your modification order. Don't try to stick it all in there together. It’s not going to work.

Michelle O'Neil:


Well Karri and I just got through filing a brief on a case where actually the contempt hearing and the final trial of the modification were heard. And technically it was two separate dates, but the evidence just kind of all started running together at both hearing and it was a mess. It was a nightmare, two separate orders got entered, but the evidence was crazy because the evidence was kind of all amalgamated into one thing. So, don't do that either, try to get your judge to try them separately if you want them to stick.


Jere Hight:

Not if you’re the petitioner, maybe if you’re the respondent maybe that’s the way to go.

Michelle O'Neil:

So what about ethics? We've got a few minutes left on this one. What about the ethics? If you are the respondent and the petitioner is dry, let's assume it's a suspended commitment case because obviously if the guy's in jail, then the order's got to get entered very quickly, but let's say it's a suspended commitment. So you've got more time to draft the order, the petitioner drafts the orders, sends it over to the respondent's attorney and you see problems with the order. Ethically representing the respondent, what is your obligation? Where do your ethical duties lie?

Jere Hight:


With your client. Anytime that your client is facing incarceration, then you don't have to play by the normal civil rule book when it comes to giving notice to your opponent. So, if there's fatal error in an order that the petitioner wants to enter, I'm going to let that order be entered and then I'm going to invalidate that order. And I think that's ethically what you're supposed to.

Michelle O'Neil:


So, trick question, follow up question to that. You know, a lot of times in family court we put at the end of an order, approved as to form or approved as to form and substance and then signature blanks. If a petitioner sends you an order and you disagree with it, you think your guy shouldn't have been held in contempt or whatever, and you know fatal flaws in the order. Are you going to sign off on it? None of it says approved as to form.


Jere Hight:

Not if it says approved as to form because I think there you do have an ethical duty not to misrepresent to the court and the other side that yes, I agree with this, this is all on the up and up. And then the next day I file my habeas to get the guy out cause it's a void order. So, I think because you have conflicting dutie, but just cause you have a duty to your client that doesn't mean you can put your own license at jeopardy because of what you're signing because either the day if you sign it, you're responsible for it.

Michelle O'Neil:


I mean to me, best practice in contempt litigation representing a respondent, defending a contempt case, I would never, I mean if you have a contested contempt hearing, I would never sign off on the order. Ever. I'm just not going do it. I'm not putting my signature on it. I object to the order, you know, I might even have a hearing over the order if the judge wanted to hear objections to the order. And one of my objections is going to be judge, you're wrong for finding him in contempt, and then they're going to get to hear me argue all over again about the merits of the contempt. But I would never sign off as to form on a contempt order. So then that kind of leads us to a question that's a little bit of more a field of where we were headed with this topic. But what about, have you ever had a time where you agreed to a contempt order?

Jere Hight:

Yes. If it was probation and I knew my client was going to go to jail if we had a contested hearing. That's the only time.

Michelle O'Neil:

Not a jail order.

Jere Hight:

Exactly. They're still walking around free, especially if the terms of probation were such that they were immediately going to be complied with by my client. For instance, I have the money to pay all this, I can pay it, so I don't have to worry about them big and default and getting the suspended commitment revoked. But even then, it's hard. It's hard to agree to because it’s serious.

Michelle O'Neil:


Right. I would think several times about, even in that type of scenario, I would think several times about agreeing to an order holding my client in contempt, because the future potential that your client could mess up, do something wrong, not comply, inadvertently not comply, and then have revocation of the suspended contempt. I mean I think that just has a lot of minefields for you as a lawyer from our ethical duty. I know that it happens a lot, I know a lot of lawyers have done it and I can think of maybe one time where I've done it but it’s not very often.

Jere Hight:


I've done it once and again it was the conditions of the suspension my client could meet almost instantaneously because, especially if it's child support and my client has a failure of not paying child support, I don't trust them to all of a sudden pay child support. And so, if you're going to have a two year suspension with them complying, well that's not going to happen probably. And you know, I'd rather fight it and have the judge put him in jail, then have him put himself in jail when he fails to commit.

Michelle O'Neil:


It’s much easier to put somebody in jail on a revocation then on a normal contempt.

Jere Hight:


You’ve got a lower burden of proof. So, you know, it is,

Michelle O'Neil:


So, attorney fee judgments, we see that this gets messed up a lot in family court. So when is an attorney fee judgment contemptible and how do you draft it so that it's contemptible?

Jere Hight:


Well, Karri probably knows more about this than me since she just did it. An attorney fee judgment is contemptible when it's based on the enforcement of child support basically and so that underlying attorney's fee judgment, you can move for contempt on it, as Karri pointed out correctly, when you move to hold someone in contempt, any attorney's fees you get for that lawsuit are not contemptible. That’s not the underlying attorney's fees that you're trying to find in contempt, which were in the underlying order. So, you have to segregate the two in your head and if you don't, you've got a void order again.



Michelle O'Neil:


So, let's be concrete about it. So, you have a divorce decree and in the divorce decree, one side was awarded attorney's fees. Those attorney's fees are not contemptible.

Jere Hight:

No.

Michelle O'Neil:

Right. So then you have a child support contempt case and you're given attorney's fees in the contempt case. Those attorney's fees can be drafted in the contempt order with a required date of payment such that if they're not paid, those attorney's fees in a future proceeding could then be contemptible.

Jere Hight:

Yes.

Michelle O'Neil:

But they're not part of the contempt right then. So, you have your contempt hearing, the petitioners awarded attorney's fees, they get their judgment. You can actually have specific payment language as child support from the contempt proceeding, but then you have to wait for him not to meet those, to file the second contempt to hold him in contempt of that.

Michelle O'Neil:


Alright, I think we're clear on that. We’ve about reached our time limit on this session, so we're going to take a little break and when we come back, Karri and I are going to talk to you about appellate remedies for enforcement cases when you can use habeas, when you use mandamus and when you use direct appeal. So we'll be right back, stay tuned. keep in mind if 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.