Thursday, April 23, 2009


Woodland Hills family law attorney Donald F. Conviser, a Certified Family Law Specialist aggressively and successfully representing Divorce and Family Law clients throughout Los Angeles and Ventura counties for over 35 years, brings you another in a series of Family Law and Divorce blogs. Call him at 818-880-8990 for a free confidential consultation about your divorce or other family law situation.

In yesterday's blog, I addressed ATROs in the context of a caller who desired to dispose of "dead" commercial vehicles during the pendency of a divorce case to avoid the risk of liability for storage fees for the vehicles, or injuries or damages resulting in some way from the vehicles. I admonished the caller that Automatic Temporary Restraining Orders became effective against her upon signing the Petition in her divorce case, restraining her from selling or otherwise disposing of the commercial vehicles, absent written consent from her estranged and uncooperative husband (who has concealed the whereabouts of those vehicles), or order of the Court permitting such disposal.

Contempt of Court is a quasi-criminal proceeding, a harsh method of enforcement that may subject the contemnor to imprisonment or a fine.

Contempt can be used to punish someone for a willful violation of a court order, among other things, including disorderly or insolent behavior toward the judge in Court interrupting the due course of the proceedings, boisterous conduct during the proceedings, misbehavior in office or willful neglect or violation of duty by an attorney or clerk or sheriff or other person appointed or elected to perform a judicial or minsterial service, abuse of the proceedings of the court or falsely pretending to act under authority of an order or process of the court, disobedience of any lawful judgment or order or process of the court [such as violation of the ATROs, but also for such things as failure to pay spousal or child support, orders for payment of necessary attorney's fees and costs, violation of custody or visitation orders, and orders requiring division of community property... but NOT for nonpayment of community property debt], interfering with an officer's custody of a person or property under an order or process of the court, unlawfully detaining a witness or party from attending a court proceeding, other unlawful interference with the process or proceedings of a court, disobedience of a subpoena or refusing to be sworn or answer as a witness, ignoring a jury summons or a juror improperly conversing with a party or witness at court regarding the action or a juror failing to disclose to the court a communication received regarding the case, or a court's disobedience of an order removing the case from its jurisdiction.

In the context of Divorce and other Family Law cases, the areas italicized above are the primary areas in which Contempt proceedings arise.

As I addressed in yesterday's blog, the elements of contempt are: 1) a valid order; 2) knowledge of the order; 3) ability to comply, and 4) willful noncompliance.

The degree of proof required in a contempt proceeding is the same as in a criminal proceeding, to wit, beyond a reasonable doubt to a moral certainty (well above the degree of proof required in civil and family law proceedings other than contempt).

All proceedings in a Family Law case "freeze" when a Contempt Action is filed, until the contempt proceedings are concluded. Because of the quasi-criminal nature of contempt proceedings, the contemnor has the right to remain silent and to refuse to take the witness stand to testify against himself. If the contemnor files a counter-declaration in his defense, while that may be unwise, he does not thereby waive the foregoing rights. The contemnor has the right to appointed counsel if he isn't represented. He is entited to certain discovery rights under "the Crime Victims Justice Reform Act", under which he is entitled to disclosure of material and information in the other party's possession, including the names, addresses and statements of witnesses the other party intends to call as witnesses, experts' reports and test results. He has the right to be present at the hearing. The burden of proof is high. But the consequences of a conviction are serious.

A contempt is either Civil or Criminal, depending on what relief is sought. If the relief sought is to compel the doing of an act, the conditional remedy defines the remedy as a Civil Contempt. If the relief sought is to punish, it is a Criminal Contempt.

Back to the ATRO case that I discussed yesterday and above. My recommendation to my caller was to seek an Order of the Court (if she was unable to get her estranged husband's written consent) to allow her to dispose of the "dead" commercial vehicles.

Whereas her husband is subject to risk of Contempt proceedings (which could be undertaken by the wife's attorney OR by the District Attorney as a crime) for violation of the Domestic Violence Restraining Orders in her divorce case, she should exercise caution and not subject herself to the risk of Contempt proceedings for disposing of the vehicles without first being given written consent by her husband or a Court order permitting her to do so.

Posted by DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, the owner of Warner Center Law Offices, representing family law and divorce clients in Los Angeles county and Ventura County, from Glendale, throughout the San Fernando Valley to Simi Valley to Ventura, including Agoura, Westlake Village, Thousand Oaks, Moorpark, Camarillo, Oxnard, Ventura, Canoga Park, West Hills, Winnetka, Encino, Tarzana, Van Nuys, Northridge, Granada Hills, and beyond, in all aspects of Divorce and Family Law, including Contempt of Court proceedings, representing the aggrieved party or the accused party, Divorce, Mastering Divorce, Premarital Agreements, Prenuptial Agreements (one and the same), Child Custody, Visitation, Child Support, Spousal Support, Property Division, Nonmarital Dissolution, Paternity, Stepparent Adoption, and creative problem-solving. CALL for a free, confidential consultation. (818) 880-8990.

1 comment:

Louis Lapides said...

Dear Sir: I have an ex-wife refusing to pay her portion of child support to a boarding school where he is staying. The billing company from the school won't go after her. What options do I have? SO far I've been told that I should pay the entire amount of the boarding school fees and then go after the ex for reimbursement and if she refuses, go after her for contempt of court. Also, during disclosure, she held back some of gher assets. Thanks for any info you share.