The Contempt Test
A person can be held in contempt if he consistently refuses to follow the order of a court. Contempt must be proved by clear and convincing evidence supported by findings of fact. The findings of fact must prove that the defendant:
- Knew what was required of him, that is, he knew there was an order requiring him to do something or prohibiting from doing something and he understood what that order meant;
- Had the ability to comply with the order. This often comes into play in contempt proceedings for failure to pay support payments. The most common defense is that the individual ordered to pay alimony or child support did not have the ability to comply because he lost his job, was demoted, became sick or disabled,or otherwise lost his ability to earn a living to allow him make those support payments; and,
- Willfully and knowingly failed and refused to comply with the court order.
Coleman v. Coleman, 664 P.2d 882, 884 (Utah 1983).
The “ability to comply with the order” prong of the contempt test has its limits. For example, if a spouse is ordered to pay alimony and he does not do so and he does not file a petition to modify, then he must comply with the alimony order and make every single effort to pay the amount ordered, or he is otherwise in contempt of court. If he fails to pay what he is ordered he has an extremely high burden to show what his efforts were to comply with the order and there are few factors that will permit a court to not find him in contempt.
How Contempt Allegations Are Brought
Allegations of contempt are typically brought by way of affidavit. The court then holds a hearing where the defendant is permitted to cross-examine witnesses and present his own evidence disputing the allegations raised in the affidavit. Based on all of the evidence presented, the Court will then make his findings of fact and issue a judgment.
Penalties Associated With Contempt
A court can punish contempt with maximum 1000 fine and 30 days in jail. Commissioners can impose a maximum $500 fine and five days in jail.
Give us a call at 801.618.1331 if you are dealing with contempt proceedings.
