Family Law
What is Contempt of Court?Tennessee recognizes two types of contempt; CIVIL and CRIMINAL. There are two types of criminal contempt: Direct Criminal Contempt is a contemptuous act (such as cursing the judge) in the Court's presence, where the Court sees or hears the contempt, and may be punished summarily. Indirect Criminal Contempt is based upon conduct committed outside the Court's presence (for example failure to pay court ordered child support) and is punishable only after notice has been given to the offender and he or she has had the opportunity to respond to the charge at a hearing. Civil contempt is distinguished from criminal contempt by the character and purpose of the punishment imposed. The critical feature that determines whether the contempt is civil or criminal in nature is not when or whether you are physically required to set foot in jail, but whether you can avoid the sentence imposed or purge yourself of it by complying with the terms of the court's order. In criminal contempt punishment is imposed unconditionally and you cannot escape by purging yourself of the con- tempt. Punishment for civil contempt, on the other hand, is imposed to compel an act and usually for the benefit of your former spouse. In civil contempt it has often been said that the convicted person holds the keys to the jail in his own pocket. WHAT ARE YOUR RIGHTS? You have the right to have notice of the nature of the charge or contempt to which you are accused, and the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and, if applicable, that a different or additional punishment may result by reason of your prior convictions or other factors which may be established in the present action if convicted. If you are not represented by an attorney, you have a right to be represented by an attorney at every stage of the proceedings against you, and if found indigent, one will be appointed to represent you. You have a right to plead not guilty or to persist in that plea if it has already been made, and, you have the right to a trial and at that trial you have the right to the assistance of counsel, the right to confront and cross examine witnesses against you, and the right not to be compelled to incriminate yourself. Oddly enough the right to be tried by a jury if you are charged with criminal contempt has been determined to not be required by the Tennessee Supreme Court. They are of course wrong, but unfortunately have the last say. There is no right to a jury for civil contempt. Violation of Tenn. Code Ann. § 36-5-104, failure to pay child support or Tenn. Code Ann. § 39-15-101, nonsupport are criminal statutes and you have all the rights of any criminal defendant . You have a right to notice of the proceedings and the notice must state the time and place of hearing, and must allow a reasonable time for the preparation of a defense, and must state the essential facts constituting the charges against you and described as such. You are entitled to admission to bail. CONTEMPT PROCEDURE A Petition is filed on behalf of your ex-spouse alleging that you have not followed the court's order and requiring your appearance before a judge. Your lawyer must then file a response to the Petition stating your defenses and admitting or denying what has been stated in the Petition against you. The court will then conduct a hearing which resembles a hearing in either criminal or civil court depending upon the type of contempt for which your former spouse elects to proceed. DEFENSES TO CONTEMPT The fact that your spouse refuses to allow court ordered visitation or has committed other misconduct does not relieve you from the court ordered payment of child support. If this occurs you are both in contempt and can be punished accordingly. It is important that you be able to prove that you have paid your child support. This is most easily accomplished by paying your support by personal check and keeping the canceled check as proof of payment. Payment by cash, money order or even bank checks presents difficulties in proving you have paid and should NEVER be used. If you must pay with cash always get a receipt, which should have the amount paid, date paid, and your former spouse's signature. It is important to remember that you and your ex-spouse must follow the court's order even if you disagree with it. The decision over whether or not to have a jury hear your case can be crucial to your defense. At this time there is no right for you to have a jury trial in criminal contempt cases, however, appeal of this issue is pending and hopefully this important right will be won for criminal contempt. If you have a hearing and are dissatisfied with the outcome of the hearing due to errors made by the court you have a right to appeal. CONCLUSION Contempt of court charges against you are frightening as they threaten your liberty. Defending the charges is legally complex. It is important to see a lawyer to protect your rights and your future. Your attorney should help you protect your liberty. If a trial is unavoidable, Your attorney can help you take the steps to defend your liberty and advise you about obtaining custody of your children, support, and visitation. |
