August 22, 2017 § Leave a comment
What you ask for in your pleadings will determine what the judge can award. So you need to be sure you’re asking for the right thing.
A recent example is the case of Fox v. Fox, decided July 18, 2017, by the COA. At the trial level, the judge found Tasha Fox in civil and criminal contempt for refusing visitation to her ex, William. Judge Fair’s succinct opinion for the COA reversed the chancellor’s ruling:
¶6. The record reflects that the chancellor found Tasha to be in both civil and criminal contempt for her refusal to allow William visitation under the April 2015 order. The chancellor sentenced Tasha to three days’ imprisonment, suspended on the condition that she surrender the child to William for a two-week visitation in July 2016. Tasha does not contest the finding of civil contempt.
¶7. On this point, we agree: William’s petition only alleged civil contempt, and Tasha was not afforded any of the procedural protections required to support a conviction of criminal contempt. See In re McDonald, 98 So. 3d 1040, 1042-45 (¶¶4-12) (Miss. 2012). We vacate the chancellor’s finding of criminal contempt.
Since William had prayed only for a finding of civil contempt, that was all he should have gotten. Tasha was not put on notice by the pleadings that she was in jeopardy of a criminal contempt ruling at the hearing, and notice was required. Here are the basics that you need to know about contempt:
- Civil contempt is designed to coerce a party into complying with a court order. The burden of proving civil contempt is by clear and convincing evidence. In civil contempt, the guilty party is said to “hold the keys to the jail,” because he or she can gain release immediately simply by complying with the court’s orders. The commitment order typically says that the defendant is jailed until he or she purges him/herself of contempt by complying.
- Criminal contempt is punitive, and is intended to punish non-compliance. The burden necessary to prove criminal contempt is beyond a reasonable doubt. Incarceration may not exceed 30 days for each offense. MCA 9-1-17.
- Direct criminal contempt is based on actions that occur in the presence of the judge, and may be dealt with by the judge summarily and immediately, and without notice. An example might be a party cussing out the judge to her face in open court. Incarceration may not exceed 30 days for each offense.
- Constructive criminal contempt is contemptuous conduct that occurs outside the presence of the judge. It requires a pleading specifying the conduct complained of, notice, and an opportunity to be heard. If the judge initiates the action, the judge must recuse and allow the matter to be heard by another judge. See McDonald, supra.
In Tasha’s case, civil contempt would probably not have accomplished much. After the judge announced his findings, she could simply have said that she was ready to comply, and that would have ended that. This was probably a chronic problem that the chancellor was trying to stop by sending Tasha a memorable message.
Had Tasha’s attorney thought it through, he might have realized that it’s best to ask always for civil and criminal contempt. That way, the judge has the latitude to address the problem in the most effective way.