by Robert Felker, J.D.
To say that emotions run high in the area of domestic relations law is an understatement. When custody of children, and the division of marital property are issues in a divorce, emotions tend to be a raging river that often overrun common sense. It seems like a good part of the day for any domestic relations attorney is spent talking clients out of what I call, in legal terms, “really bad ideas.” Most of us have had the client who wants to put a stop to visitation because the child support payment was late, or doesn’t pay child support because they don’t think the other person is using the money appropriately. My personal favorite is the spouse who thinks they can sell a marital home without anyone knowing. Part of our job as counsel is to talk our clients out of “really bad ideas.” Sometimes it’s not our clients who follow through with the “really bad ideas,” but the other party, and we must take action to protect the interests of our clients. My first approach is to try and work something out with the counsel for the other party, who often is simply unable to talk their client out of the “really bad idea.” If there is no counsel I try to work things out with the other party, but often times I’m left with no option other than to file a Petition for Rule to Show Cause or Petition for Adjudication of Criminal Contempt.
In domestic relations, contempt proceedings are usually begun by a petition under 750 ILCS 5/511 [1]. Contempt proceedings can be designated as either civil or criminal, and further designated as direct or indirect. Initially whether contempt proceedings are civil or criminal in nature is determined by the purpose for which contempt sanctions are imposed. Civil contempt usually consists of failing to do something ordered by the court for the benefit of the opposing litigant,[2] and is typically called a Petition for Rule to Show Cause. The Petition for Rule is filed and the opposing party must show cause why he/she has violated the order.[3] An example would be a party not paying child support who must show that the non-payment is beyond their control and not willful.
The sanctions for civil contempt can consist of a fine, or imprisonment. The contemnor must be given the “keys to the cell,” however, since the imprisonment is not meant to punish the contemnor, but to urge them to comply with the court’s order.[4] This means that the contemnor must be given the ability to end their imprisonment by complying with the order.
In contrast to civil contempt, criminal contempt of court has been generally defined as conduct which is calculated to embarrass, hinder or obstruct a court in its administration of justice or derogate from its authority or dignity, thereby bringing the administration of law into disrepute.[5] The reasons for imposing punishment for criminal contempt are much the same as the rationale for punishing other types of misdemeanor criminal conduct (e.g. retribution, deterrence, and vindication of the norms of socially acceptable conduct). Applicable to a respondent in a criminal contempt proceeding are the privilege against self-incrimination, the presumption of innocence, and the right to be proved guilty beyond a reasonable doubt.[6] Due to this privilege against self-incrimination, the contemnor cannot be called to show cause why he/she should not be held in contempt. Because of this, a Petition for Rule to Show Cause would not be the correct name for a petition for criminal contempt, but rather a Petition for Adjudication of Criminal Contempt.[7] Criminal contempt is almost always viewed as a misdemeanor action, because in most criminal contempt proceedings, the defendant is not given an opportunity for a jury trial. Because of this, the contemnor’s punishment upon a guilty verdict is limited to not more than six months in jail and/or a fine.[8]
Contemptuous conduct is also categorized on the basis of whether it is direct or indirect. Direct contempt is said to happen within the presence of the court.[9] While direct contempt is contemptuous conduct which occurs in the presence of a judge, it is not strictly limited to actions seen by the judge.[10] Therefore, while the filing of a pleading known to be false would constitute direct contempt, the sale of a marital home against court order would constitute indirect contempt, because the court would be present at the filing of the pleading, but not present at the sale of the home. Direct contempt does not require a formal charge, plea, or presentation of evidence to support a finding of contempt, because its occurrence in the presence of the court gives the court personal knowledge of the relevant facts.[11] The proceeding must provide reviewing courts with a sufficient record if the finding of contempt is appealed, so the facts supporting the finding must be included in the order, or a transcript of the proceedings must be made.[12]
Indirect contempt is contempt of which the court does not have full personal knowledge, and therefore requires proof of facts to support a finding of contempt.[13] In a civil contempt setting, the due process requirements are minimal, and include notice and an opportunity to be heard.[14] Indirect criminal contempt, however, includes all the trappings of other criminal proceedings, including the contemnor knowing the nature of the charges against him/her, charges brought forth by a citation, an opportunity to answer, the privilege against self-incrimination, the presumption of innocence, the right to counsel, the right to confront witnesses, and having the charge proven beyond a reasonable doubt.
As I have said before, my goal is to talk clients out of “really bad ideas,” and work with the other side to rectify theirs, however, when those strategies fail, contempt of court rarely fails to get people’s attention.
[1] 750 ILCS 5/511 states in pertinent part, “A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced or modified by order of court pursuant to petition.” This includes orders of visitation, but violations of a visitation order can also be dealt with under 750 ILCS 5/607.1.
[2] Hoga v. Clark, (1983) 113 Ill.App.3d 1050, 1058; 69 Ill.Dec. 736, 741.
[3] Evidence of violation of a divorce decree is prima facie evidence of contempt, and the burden shifts to the contemnor to prove that the conduct was not willful Palacio v. Palacio, (1975) 33 Ill.App.3d 1074, 1082; 339 N.E.2d 427, 433.
[4] Sullivan v. Sullivan, (1973) 16 Ill.App.3d 549, 552; 306 N.E.2d 604, 606
[5] People v. Javaras, (1972) 51 Ill.2d 296, 299; 281 N.E.2d 670, 671.
[6] Marcisz v. Marcisz, (1976) 65 Ill.2d 206, 209, 2 Ill.Dec. 312, 357 N.E.2d 477, 479, although this only applies to indirect criminal contempt.
[7] In Re Marriage of Betts, (1990) 200 Ill. App.3d 26, 58; 146 Ill.Dec. 441, 462.
[8] Id at44, 453.
[9] Id at 48, 455.
[10] Id, including the refusal of the contemnor to give documents to a grand jury, or the filing of contemptuous documents.
[11] Id at 49, 456.
[12] Id.
[13] Id at 48, 455.
[14] Id at 53, 458
This is a law blog created by the attorneys of Felker & Reganti, LLC, an Illinois law firm. Laws may vary in your jurisdiction. The blog is provided for informational purposes only, and should not be used as a substitute for the advice of a licensed attorney. Accessing this information in no way creates an attorney client relationship between you and the attorneys of Felker & Reganti, LLC. Copyright 2009 Felker & Reganti, LLC.
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