What To Do:

In family law cases, the bases for a contempt proceeding are numerous. In some cases, the cause of action could be general and unrelated to family law, while others may be specific only to family law circumstances. While both juvenile and circuit courts in the Commonwealth are vested with inherent contempt powers, the courts are also granted statutory contempt powers for nearly any situation that may arise during a family law case.


One of the most common, if not the most common, causes of action for contempt in family law is a Rule to Show Cause related to child support. Va. Code § 16.1-278.16 specifically addresses contempt proceedings in the Juvenile and Domestic Relations District Courts regarding child support orders       entered in accordance with subdivision A 3 of § 16.1-241, child support orders entered in the Circuit Court, but transferred to the Juvenile Court in accordance with § 20-79, and administrative support orders entered by the Department of Social Services pursuant to Chapter 19 of title 63.2. Temporary child support orders entered in the Circuit Court are enforceable pursuant to Va. Code § 20-71 and final child support orders entered in the circuit are enforceable pursuant to § 20-115.


Another common basis for a contempt proceeding is an alleged violation of a custody and/or visitation order. These situations are addressed by Virginia law in § 16.1-278.16 for Juvenile Court proceedings and in § 20-124.2 for Circuit Court proceedings. Va. Code § 16.1-278.16 addresses contempt proceedings in the Juvenile Court for orders entered in the Juvenile Court and those orders entered in the Circuit Court, but transferred to the Juvenile Court for enforcement in accordance with Va. Code § 20-79. Va. Code § 20-124.2 addresses contempt proceedings in the Circuit Court for alleged violations of both final and pendente lite custody and visitation orders entered in the Circuit Court.


Contempt proceedings regarding alleged violations of Property Settlement Agreements that have been ratified and incorporated into a Final Decree of Divorce or equitable distribution awards set forth in a Final Decree of Divorce are specifically addressed in Va. Code § 20-115.


Contempt proceedings associated with spousal support orders are addressed in Va. Code §16.1-278.16 for orders entered in the Juvenile Court in accordance with § 16.1-241 or for orders entered in the Circuit Court and subsequently transferred to the Juvenile Court pursuant to § 20-79. Pendente lite spousal support orders in the Circuit Court are enforceable pursuant to § 20-71 and final orders are enforceable in the Circuit Court pursuant to § 20-115.


While the four causes of action set forth above are by far the most common in family law, other contempt proceedings are not unheard of, especially given the emotional and personal nature of family law cases. Summary contempt for misbehavior in the presence of the court is not unheard of (Va. Code § 18.2-456 and § 16.1-69.24). Neither are contempt proceedings for bad faith in pleadings and motions (Va. Code § 8.01-271.1) or failure to obey subpoenas and summonses and failure to testify (Va. Code § 8.01-407, § 19.2-267, § 8.01-401).


Identifying Defendant(s) – Spouse and Third Party


In general, the opposing party will be the defendant in any contempt proceeding in a family law case. This is dictated by the fact that divorce cases in Virginia may only consist of two parties and that most custody, visitation, and support cases consist of two parties, one mother and one father. Of course, there are exceptions.


Va. Code § 16.1-278.16 indicates that a parties’ employer may be subject to a contempt proceeding if the employer is subject to a payroll deduction order pursuant to § 20-79.1 and fails to comply after being given a reasonably opportunity to show cause why he failed to comply with such order.


Additionally, not all family law cases are always limited to two parties. Any party who submits to the jurisdiction of the Juvenile Court by filing a petition for custody and/or visitation and is subsequently a party to any order of the Juvenile Court is also subject to a potential contempt proceeding for violating the order of the court pursuant to Va. Code § 16.1-278.16. For example, the defendants in a contempt proceeding for an alleged violation of a custody and visitation order could be numerous and include family members, friends, and others not biologically related to the child.  


Burden of Proof – Evidence, Testimony


Criminal contempt proceedings are intended to preserve the power and vindicate the dignity of the Court, where as civil contempt proceedings are remedial in nature and are designed to compel the contemnor to do what he was already ordered to do and enforce the rights of private parties. See U.S. v. United Mine Workers, 330 U.S. 258 (1947); Leisge v. Leisge, 224 Va. 303 (1982); Carter v. Commonwealth, 2 Va. App. 392 (1986); Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911). There are also two forms of contempt: direct and indirect. Direct contempt takes place in the presence of the court and may be punished summarily without prior notice to the defendant. See Davis v. Commonwealth, 219 Va. 395 (1978); Mine Workers v. Bagwell, 512 U.S. 821 (1994). Indirect contempt is more common in family law cases and takes place outside the hearing and presence of the trial judge and the defendant is entitled to notice. See Davis v. Commonwealth, 219 Va. 395 (1978).


The burden of proof associated with any contempt proceeding depends upon whether the court is proceeding on a civil contempt action or criminal contempt action. Not only is the burden of proof different for each, but a number of constitutional protections apply to a criminal contempt proceeding that do not apply in civil contempt proceeding, despite the fact that a defendant in either proceeding could potentially face 12 months incarceration. If the defendant “holds the keys to the jail” and can “purge himself of contempt” by performing an affirmative action, and therefore bring himself into compliance with the order, the contempt proceeding is civil. Examples could include a court ordering a defendant spouse to list a marital residence for sale or face incarceration until he does or a court ordering that a defendant be incarcerated until he brings his child support arrearage current. In these situations, if the defendant complies with the order of the court, he will be deemed to have “purged himself of contempt” and will either avoid incarceration altogether or be released from incarceration. If the defendant does not have the opportunity to purge himself of contempt and the punishment is unmodifiable or avoidable by the defendant, then the proceeding is criminal in nature. The test for distinguishing between civil and criminal contempt proceedings as stated herein was set forth by the Virginia Court of Appeals in the matter of Kessler v. Commonwealth, 18 Va. App. 14 (1994).


Under Virginia Law, in order to establish a case for civil contempt, the plaintiff must prove the existence of a court order either expressly prohibiting or expressly mandating an act by the defendant, the defendant’s actual knowledge of such an order, and a violation of the order by the defendant. See Winn v. Winn, 218 Va. 9 (1977); Kidd v. Virginia Safe Deposit & Trust, 113 Va. 612 (1912); Wilson v. Collins, 27 Va. App. 411 (1998). The burden of proving these three elements rest upon the moving party. If proven, the burden then shifts to the obligor to provide justification for his non-compliance. See Alexander v. Alexander, 12 Va. App. 691 (1991). Although there do not appear to be any Virginia appellate cases that definitively establish the requisite burden of proof, the United States Court of Appeals for the Fourth Circuit has held that the moving party must prove noncompliance by clear and convincing evidence. See In re: General Motors Corp., 61 F.3d 256, 258 (4th Cir. 1995). However, The Virginia Civil Benchbook for Judges and Lawyers cites Leisge, 224 Va. 303 (1982) for the proposition that the standard of proof is a preponderance of the evidence even though that proposition is not plainly articulated in the case.


The burden of proof in a criminal contempt proceeding is clear and, as with any other criminal case, the case must be proved beyond a reasonable doubt. See Salyer v. Commonwealth, 209 Va. 662 (1969). It is also important to note that in addition to an elevated burden of proof, the defendant must have prior notice of the criminal nature of the proceedings and the Commonwealth must be made a party to the proceedings. See Powell v. Ward, 15 Va. App. 553 (1993). Defendants in criminal contempt proceedings are also entitled to representation by counsel and the Double Jeopardy Clause of the United States Constitution can apply. See Steinburg v. Steinburg, 21 Va. App. 42 (1995); Courtney v. Commonwealth, 23 Va. App. 561 (1996).


Compensation – Damages, Enforcement Actions, Injunctions, and Court Orders


Sanctions imposed on a party found to be in civil contempt serve either to compel the contemnor to comply with the court order or compensate the plaintiff for losses resulting from the contemnor’s noncompliance. Sanctions may include fines, imprisonment, or both, but may also include alternative sanctions. The Virginia Supreme Court stated in Deeds, “In appropriate cases the violator may be punished by an award of damages against him in favor of the injured party sufficient to indemnify him for the pecuniary loss occasioned him as a result of the act or omission which violated the injunction having injured or damaged property or rights which he was entitled to have protected or preserved by the injunction.” 162 Va. 157 (1934). The punishment is “adapted to what is necessary to afford the injured party remedial relief for the injury or damage done by the violation of the injunction to his property or rights which were under the protection of the injunction.” See Deeds.


For example, in Sullivan v. Sullivan, (Record No. 0027-00-4, Va. Ct. App., November 21, 2000), the trial judge, who was affirmed on appeal, ordered the husband to purchase a life insurance policy or post a $30,000 bond to ensure performance of his obligation in accordance with the terms of the parties’ Property Settlement Agreement.   In Sullivan v. Sullivan, the trial judge declined to and did not specifically find the husband in contempt, although the matter was instituted as a civil contempt proceeding, but still maintained the authority to order husband to acquire insurance or post a bond. 33 Va. App. 743 (2000).


One of the most common requests made during a civil contempt proceeding in the family law arena is an award of attorney’s fees. In accordance with the principles set forth in Carswell v. Masterson, 224 Va. 329 (1982), courts have the inherent authority incident to contempt proceedings to award counsel fees incurred by an aggrieved party. See also Albert v. Albert, 38 Va. App. 284 (2002). Sullivan v. Sullivan further indicates that a judge may award attorney’s fees to an aggrieved party even when the court does not specifically find the defendant guilty of contempt, but orders other remedial action.


In addition to the inherent authority of a court to order an award of attorney’s fees, there is often a section in Property Settlement Agreements addressing an award of attorney’s fees should either party institute proceedings against the other in an attempt to secure compliance with the parties’ agreement. If a Property Settlement Agreement is ratified and incorporated into a Final Decree of Divorce and includes such a provision, Va. Code § 20-109 binds the court in any subsequent civil contempt proceeding to enter an order regarding attorney’s fees in accordance with the parties’ agreement.


In a criminal contempt proceeding, the punishment imposed by the court is limited to a fine, imprisonment, or both. See Gompers v. Buck’s Stove & Range Co., 221 U.S. 418. Punishment for a violation of Va. Code § 18.2-456 is limited to a $250 fine and/or ten days incarceration, unless the court impanels a jury to ascertain the fine and/or imprisonment. See Va. Code § 18.2-457.


Impact on Divorce Proceedings


The consequences of a contempt finding may not be limited to only the contempt proceeding itself. In suits for divorce, pendente lite orders are not uncommon and typically address matters of custody, visitation, support, preservation of marital assets, and attorney’s fees. If the issue of attorney’s fees is taken under advisement for example, contempt findings that occur while the matter is pending provide an aggrieved party with substantial ammunition to argue that he incurred unnecessary counsel fees and that the fees incurred during the course of litigation should be borne by the contemnor. The aggrieved party’s argument for an award of attorney’s fees is even stronger when fees are not awarded as part of the contempt proceeding, but are reserved for determination at the conclusion of the divorce case.


Contempt findings may also impact a client’s case for custody or visitation should he fail to follow a temporary custody and visitation order, specifically in regards to factor 6 and 10 of Va. Code § 20-124.3. Violations of a temporary visitation and custody order can be considered under these factors and a finding of contempt obviously and negatively impacts the contemnor as to those specific factors.


Finally, as to equitable distribution, in light of the Wright v. Wright decision, 61 Va. App. 432 (2013), counsel are frequently requesting at pendente lite hearings that opposing parties be enjoined from transferring, selling, spending, wasting, disposing of, or otherwise diminishing in value any marital or part-marital assets while the case is pending. This request for injunctive relief is commonly granted when requested. If a party violates this injunction and is unable to purge his contempt, the court could consider a contemnor’s violation when considering factors 10 and 11 of Va. Code § 20-107.3(E).

Respectfully Submitted

Michael P. Tittermary