Contempt of Support Orders in Family Law

by | Jan 25, 2023 | Child Custody & Visitation, Child Support, Conservatorships, Divorce, Move-Away, Restraining Orders

Family law cases often result in many orders made by the Court. These orders often cover a myriad of issues including child custody, child and spousal support, the sale or retention or property, production of records, etc. Many people make the mistake of thinking that Family Court orders do not have the same enforceability as orders made by other civil or criminal courts. That is a dangerous assumption to make, however, because the refusal or failure to abide by Family Court orders can be considered contempt of court which may result in civil fines and even jail time.

Filing a California contempt of court order to show cause in a divorce or family law case is a tool not often utilized but can be powerful when it is. The motion is available to a party when one of them refuses to comply with an enforceable California family law court order.

Contempt of court motions are criminal in nature, so they carry with them the requirement of the criminal burden of proof. This is a higher standard than in many family law proceedings. To establish contempt, the following must be proven:

  1. There must be a valid Court order. The order must be clear because vague orders that not specific are difficult to enforce in contempt proceedings. The Court’s Minutes from hearings, Findings and Orders After Hearings, and Judgments are helpful to establish the valid order.
  2. The accused party must have knowledge of the court order. The Court can look to different methods of notice to satisfy this requirement, including whether the accused was present in Court the day the order was made. In many situations, the accused has personally received a copy of the order or was present in court when the court order was made. In those unique situations where the accused was not served with the court order and was not present in court, the decision on whether they had notice of the order could depend on specific facts like whether the accused was represented by an attorney who was present at the time, or written notice was given to the accused at a later time. Notice is a crucial requirement for the Court to be able to issue an order for contempt, so this is a crucial step that should not be overlooked.
  3. The accused must have willfully violated the court order. This is a very fact specific requirement that can get complicated quickly. In many cases of contempt of a support order, the accused argues the violation of the order was not willful, they simply were not able to make the payments because of their financial circumstances. Factors the Court may look to when determining whether the violation of a support order was willful or not could include whether partial payments are being made, what bills the accused is paying during this time, and what lifestyle the accused lived during this time. For example, if they are making partial payments perhaps the order is outside their means, however if they also went on a lavish vacation during this time that argument is no longer very credible.

It is up to the Court whether that is accepted as a valid defense or not, but it is important to remember the Court does not take contempt requests lightly due to their quasi-criminal nature.

In certain cases, it is not only the party to the case that can be held in contempt. Wage garnishment orders can be found in family law actions and are often used to ensure timely payment of support. These are usually called earnings assignment orders and must be served on the party’s employer to notify them of their obligations to garnish the party’s wages. If a party’s employer willfully fails to comply with a wage garnishment that relates to the payment of support, that employer may be subject to contempt proceedings.

Unfortunately, this is common issue when the party to the case originally ordered to pay support is their own employer, or they are the friends or family members to their employers. In such situations, it is sometimes helpful to send a letter to the employer informing them they are violating a Court order as that may be enough to force compliance. Oftentimes, however, if the employer was willing to ignore the Court’s order originally, a petition for contempt of the order may be required to enforce the order.

Recent caselaw published this year in Brubaker v. Strum (January 13, 2023, B317694) Cal.App.5th, has provided further insight into the issue of an employer violating an earnings assignment order. In Brubaker v. Strum the Court stated the obligor’s employer ignores an earnings assignment order at its peril. Family Code section 5241, subdivision (a), provides that an employer who willfully fails to withhold and forward support pursuant to a valid earnings assignment order (called an “income withholding order” under federal law) must pay the obligee the amount of support that should have been withheld and sent to the obligee, plus interest. And if the employer complies with the assignment order, the obligor employee has some protection. Section 5241, subdivision (b), provides that, if the employer properly withholds support from the obligor’s earnings, the obligor cannot be held in contempt or subject to criminal prosecution for nonpayment of the support, even if the obligee did not receive the support the obligor’s employer withheld.

Thus, the recent caselaw is providing protection to parties that fail to pay support by transferring that burden to the employer when an earnings assignment order is in place. This does not stop the party from owing the support, it only protects them from a claim of contempt on the likely assumption the employee does not have control over the employer. The party not receiving support can, however, still file a motion for support arrears for the unpaid amounts. The Court in Brubaker v. Strum found that based on the language and legislative history of section 5241, where an employer is subject to an earnings assignment order, section 5241 protects obligors only from being held in contempt or subject to criminal prosecution for nonpayment of the support. Contrary to the family court’s ruling, the statute does not preclude an obligee like Brubaker from seeking arrearages or a determination of arrearages from an obligor like Strum.

While this ruling may seem unjust to the party not receiving support, know that you may have options and most cases in family law are very fact specific which may provide you some relief.