Understanding the Differences between Civil and Criminal Contempt

A common part of practicing Family Law includes filing and defending against contempt actions. Contempt actions are brought against a party for not abiding by a court order. The purpose of a contempt action is to either enforce compliance with a court order, or to seek punishment for a violation of a court order. There are two forms of contempt, which are direct contempt and indirect contempt. Direct contempt occurs in the presence of the court and is punished in a summary proceeding, which is in the courtroom at the time of contempt. Indirect contempt could be civil or criminal in nature, and occurs outside the presence of the court. Indirect contempt requires proof of the defendant’s willful violation of a court’s order. This blog will only discuss indirect contempt, and more specifically, the differences between civil and criminal contempt.

There is a key difference between civil and criminal contempt. The main differences are the punishments available for each type, and the burden of proof required for each type. A charge of contempt may be labeled.

Criminal Contempt

            Criminal contempt is intended to preserve the power and vindicate the authority of the court, or, in other words, punish those who violate court orders because there is no other remedy available. The punishment for criminal contempt is governed by T.C.A. § 29-9-103, and can consist of confinement, fine, or both. The maximum period of confinement, or jail, is ten days per count, and the maximum fine is $50.00 per count.

            Although criminal contempt is often heard by chancellors or judges in civil courts, constitutional protections are still afforded to the accused. Since criminal contempt is criminal in nature, the burden of proof to establish a willful violation of a court order is beyond a reasonable doubt. This means that the person prosecuting the charges of contempt must convince the finder of fact that there is no other reasonable explanation that can come from the evidence presented. This is the same standard for all criminal cases, ranging from petty crimes to felonies such as murder. An accused can also “plead the 5th” in a criminal contempt hearing to not incriminate themselves. It is crucial for a court to proceed on charges of criminal contempt first, because the same or similar set of facts can support claims of both criminal and civil contempt. It would be an infringement of an accused’s constitutional rights to elicit testimony regarding civil contempt and then use that testimony to incriminate and convict the accused of criminal contempt.

            A properly drafted Petition for Contempt should give the accused proper notice of what the specific charges of contempt are, give notice of a hearing, and of certain constitutional protections and rights the accused is afforded such as the right to an attorney.

Civil Contempt

Civil contempt is intended to enforce compliance with a court order. Civil contempt can be punished by a fine or jail time, but normally the person bringing a contempt action is seeking that a court order be enforced. The burden of proof to establish civil contempt is preponderance of the evidence. This means that it is more likely than not that the claims asserted are true.

The person alleged of being in civil contempt is often described as “holding the keys to the jail”. This refers to the court’s ability to punish a person in civil contempt of a court’s order by jailing them until they comply with the court order in question. The defendant can usually make what’s called a “purge payment” when they are in jail. This usually only applies when the basis of contempt is failure to pay child support, attorney’s fees, or another court ordered payment or judgment. The person can make a payment towards the arrearage that has accrued to get them out of jail, or to prevent them from being put in jail at the contempt hearing. This is the main difference between criminal and civil contempt. Civil contempt can be purged, whereas criminal contempt cannot because the act cannot be undone.

Civil contempt is determined at the day of the hearing, which is different from criminal contempt. If the defendant has the ability to comply with the court order, and the failure to comply with the court order was willful, then the defendant can be jailed and fined each day until they purge themselves of contempt. For example, a person can fail to pay child support for six months. They can pay the six-month arrearage of child support the morning of the trial, and they are no longer in civil contempt. This practice is not advised if a contempt action has been brought against you, but the end goal is achieved for the person bringing the contempt action. The petitioner gained compliance with the court order by receiving their child support, although they may not have been successful in receiving a judgment showing the defendant to be in civil contempt. Civil contempt is brought to enforce a court order, and criminal contempt is brought to punish violations of a court order because there is no other remedy available.

If you have been served with a petition for criminal or civil contempt, or if you have a divorce or custody order that is not being complied with, then you should consult with an attorney as soon as possible.