Going for the “easy kill” in contempt proceedings

Posted Monday, March 11th, 2013 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Clients seeking to hold the other party in contempt for violation of a family court order often present a mix of potential contempt claims.  Some of these claims will merely seek compliance with the court order.  An example might be a contempt action for unpaid support, in which the goal is to get the other party to pay what is past due.

Other contempt claims are not designed to remedy past compliance so much as to get the opposing party’s cooperation with future compliance.  A rule to show cause regarding past denied visitation is a typical example.  While part of the contempt request might include make-up visitation, the bigger goal is to get the other party’s attention by obtaining a finding of contempt, making them pay attorney’s fees for documenting the contempt, and setting up future criminal contempt claims for subsequent violations (there’s nothing like sending an opposing party to jail for a few days to get his or her attention).  Further, sometimes the evidence supporting the contempt claim is very solid; other times, less so.

Mixing solid contempt claims with less solid claims can be counterproductive, especially if the goal of the contempt proceeding isn’t so much to gain compliance but to obtain cooperation.  Mixing such claims may lead to a finding of contempt on some but not all issues.  It is the weaker claims that often take longer to prove–as one needs to marshal all available evidence to convince the court of the contempt–so the trial’s focus will tend to be on the weaker claims.  In such cases, if the court doesn’t find contempt on all issues, the court is less likely to award all the prosecuting party’s attorneys fees and costs.  The court may even deny fees outright.  Especially when opposing parties are pro se the lesson they may take away from such a partially successful contempt action is that they got away with something–they are no worse off then if they had complied initially and the opposing party is out fees and costs.

Thus, while it is less efficient, it is often better to simply prosecute the easy kills and forgo the questionable or weaker contempt claims.  Often all the goals can be met by merely prosecuting the easily provable contempt claim.  For example if one’s client has a strong claim that visitation was denied but a weaker claim that the other parent is disparaging one’s client in front of the child, bringing just the strong claim will meet the goals of obtaining a contempt finding and requiring the other party to pay fees and costs for violating the court order.  Later, if the opposing party continues the disparagement, one can also bring a rule on all the disparagement.  Even if one loses that rule, the opposing party is at least cognizant that a proven violation will lead to them having to pay fees.

Whenever the true goal of a family court rule to show cause is to get the opposing party’s attention so that he or she understands the negative consequences of disobeying a court order, it can be counterproductive to mix weak claims with strong ones.  One should prosecute the strong claims separately and, perhaps, forgo or delay prosecuting the weaker claims.