Military Law Issues
Contempt Procedures in Iowa
Contempt is often defined as willful disobedience. "Willful disobedience requires evidence of conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the contemner had the right or not.” McKinley v. Iowa Dist. Court for Polk County, 542 N.W.2d 822,824 (Iowa, 1996). Contempt is sufficiently shown if some of the default was willful.
Since contempt is quasi-criminal, contempt must be proven beyond a reasonable doubt. The contemnee (person raising the contempt charge) has the burden of proof to show that the contemnor (person allegedly in contempt) had a duty to obey a court order and failed to do so. The burden then shifts to the contemnor to show that he did not willfully violate the order.
There are two recognized defenses to contempt: (1) the order was indefinite and uncertain, and (2) there was not a willful disobedience (often an inability to pay). An order may be void if it is vague due to uncertainty or indefinite. While a decree generally cannot be attacked collaterally, a void judgment remains subject to collateral attack. The order must be clear and definite so that the alleged contemnor is clearly informed of what is required.
The contemnor must also be allowed to purge the contempt by performing the act required or by undoing or reversing the acts constituting the alleged contempt. If the contemnor has done all he can do to obey the order, he is entitled to discharge even if he is unable to comply.
In Iowa two sections provide for contempt. Chapter 665 regulates contempt power and regulates the contempt of any court order. Section 665.4 authorizes specific periods of incarceration as punishment for past acts of contempt, while Section 665.5 authorizes incarceration to forcefully coerce compliance with a court order. 665.4(2) provides that punishment for contempt shall be by "a fine not exceeding five hundred dollars or imprisonment ... or by both...." Section 598.23 regulates contempt based on disobedience of dissolution case orders. “If any party against whom any temporary order or final decree has been entered shall willfully disobey the same, or secrete his property, he may be cited and punished by the court for contempt and be committed to the county jail for a period of time not to exceed thirty days for each offense.” A court can have the authority to utilize the procedures under 665 and penalty under 598.23. Section 598.23 is interpreted to be primarily punitive in nature, and only indirectly coercive. When incarceration is used to coerce, the statutory limits in the Iowa code do not apply since the contemnor “carries the keys to their prison in their own pockets.”
Except for contempt of court committed in the courtroom in front of the judge ruling that behavior in the courtroom is contemptuous, the contemnor has the right to be informed of the charges, right to counsel, right to testify and call witnesses, and present a defense or explanation.
Contempt Procedures in Michigan
Contempt for nonpayment of support or alimony
Neglect or violation of an order or decree providing for alimony or support or maintenance can be punished by fine or imprisonment or both upon petition by the party whose rights may have been impaired, impeded, or prejudiced by the neglect or violation. MCL 552.151 If person fails to pay support and fails or refuses to obey or perform the order and if an income withholding is inapplicable or unsuccessful, the recipient of support or friend of the court may commence civil contempt proceedings. The court may:
a. Find payer in contempt for failure to appear.
b. Find payer in contempt under section 33 of MCL 552.631
c. Issue bench warrant for arrest
d. Adjourn contempt proceeding.
e. Dismiss contempt proceeding if not in contempt. MCL 552.631
However, the court may, upon application for modification of a judgment or order when the applicant is in contempt, waive the contempt and proceed to a hearing without prejudice to the applicant's rights and render a determination on the merits. MCL 552.17a The payer shall pay the costs of the hearing except upon good cause. The court may also order any vehicle owned by payer temporarily inoperable by booting or similar method, subject to release on deposit of bond.
The court may find the payer in contempt if he is in arrears and one or more of the following:
a. Payer has capacity to pay out of currently available resources al or some portion of the amount due.
b. By due diligence payer could have capacity to pay some portion of the amount due and payer fails or refuses to do so.
c. Payer has failed to obtain source of income and failed to participate in a work activity after referral by the friend of the court. MCL 552.633. The court could also find in contempt under MCL 552.635 if a or b above apply.
The court shall presume the payer has the currently available resources equal to one month of payments if no proof to the contrary is presented. The court may not presume more than one month of resources without proof by friend of court or recipient of support. MCL 552.633
Upon the finding of contempt under MCL 552.633, the court may:
a. Commit the payer to jail or alternative
b. commit to jail or alternative with privilege of leaving during hours court determines, and under supervision, necessary for purpose of allowing payer to satisfy the terms
c. Commit to penal or correctional facility not operated by department of corrections.
d. Other enforcement remedy if qualifies and evidence supports applying remedy
e. Order to participate in work activity
f. Participate in community corrections if available.
g. Orders fine of not more than $100 which is deposited in friend of court fund
h. Supervision of the office with reasonable conditions and participation as listed in code. MCL 552.633 If found under contempt under MCL 552.635, the court could order one or more, a, b, f, g, h above, and/or condition a suspension of an occupational license, driver's license or recreational or sporting license upon compliance.
As an alternative to MCL 552.635, with court's permission, the payer could be placed in an alternative track if the difficulty paying is due to a documented medical condition, documented psychological disorder, substance use disorder, illiteracy, homelessness, a temporary curable condition, or unemployment lasting longer than 27 weeks. The alternative track places the payer on probation for up to one year and a court-approved plan to address the conditions preventing payment. Failure to comply could result in up to 45 days jail. The plan may allow modification with notice of the support and hearing upon objection. Upon successful completion of the plan, the arrears owed to the state with state's approval may be discharged, and arrears owed to payee with payee's consent. MCL 552.635a.
The court may also access the reasonable fees of the friend of the court to bring the enforcement action. MCL 522.636 Commitment may be up to 45 days for the first adjudication of contempt or 90 days for a subsequent. MCL 522.637 If the payer is committed to jail and fails to return within the time prescribed, he is considered to have escaped from custody and shall be guilty of a misdemeanor punishable by imprisonment for not more than 1 year. MCL 522.639.
Contempt for failure to follow parenting plan
If the friend of court determines that resolution of parenting plan is unsuccessful then the friend of the court shall initiate civil contempt proceedings. If the court finds that the parent has violated the parenting plan without good cause, the court shall find the parent in contempt and may do:
a. Require additional terms and conditions consistent with the parenting time order
b. Modify the parenting time order, after notice and hearing if requested by a party
c. Order makeup parenting time be provided
d. Order fine of not more than $100
e. Commit to jail or alternative to jail
f. Commit to jail or alternative to jail with privilege of leaving for employment
g. Condition suspension of occupational license, driver's license, or recreational or sporting license upon noncompliance with order for makeup and ongoing parenting time
h. Community corrections program if available.
I. Place under supervision of office with reasonable conditions
Commitment shall not exceed 45 days for the first finding of contempt or 90 days for each subsequent finding of contempt.
If the court finds that party has acted in bad faith, court shall order party to pay a sanction of not more than $250 for the first time, not more than $500 for the second time, and not more than $1000 for the third or subsequent time with the fine paid to the friend of the court fund. The court shall order the party acting in bad faith to pay the other party's costs. If a bench warrant is issued, an order to render any vehicle owned by the party to be temporarily inoperable by booting or another similar method may be issued. MCL 552.644
If the parent requests a hearing on modification, if not resolved by other means, the court shall combine the hearing with the show cause unless good cause to have separate and then the modification hearing shall be held prior to the contempt. MCL 522.645
Contempt for failure to pay civil fine
Failure to pay the civil fine, costs, or both, or of any installment, as ordered pursuant to section 907(2) of the Michigan Vehicle Code, can be treated as civil contempt. The term of imprisonment for nonpayment of a civil fine or costs shall not exceed 1 day for each $10 of the fine and costs. A person committed for nonpayment of a civil fine or costs shall be given credit toward payment for each day of imprisonment and each day of detention in default of recognizance before judgment at the rate of $10 per day. MCL 257.908
Contempt in court
When in immediate view of court, court may punish summarily by fine, imprisonment or both. When other than in immediate view and presence of court, the court may fine or imprison or both, but after charging by affidavit or other method with opportunity to defend. MCL 600.1711
Punishment for Contempt
Fine of not more than $7500 or imprisonment, except in cases where the commitment is for the omission to perform an act or duty which is still within the power of the person to perform, not to exceed 93 days or both. The court may place individual on probation in manner provided for persons guilty of a misdemeanor.
If the contempt is for omission to perform an act or duty, the imprisonment shall be terminated when the person performs the act or duty or no longer has the power to perform the act or duty and pays the fine, costs, and expenses of the proceedings. MCL 600.1715 If the misconduct causes an actual loss or injury to any person, the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to other penalties. The payment is a bar to action to recover damages for the loss or injury. MCL 600.1721
Violation of personal protective order
If the respondent is 17 years or older, and violates a personal protective order, he/she is subject to immediate arrest and subject to the civil and criminal contempt powers of the court. If found guilty of criminal contempt, he/she shall be imprisoned for not more than 93 days and may be fined not more than $500. If less than 17 years of age, he/she is subject to the dispositional alternatives in MCL 712A.18. MCL 600.2950 MCL 764.15b