With every divorce, the court orders the parties to do (or refrain from doing) certain things. For example, courts issue orders regarding the division of property and debts, the payment of child support and maintenance, and parenting plans and parental responsibilities. Unfortunately, some parties refuse to follow the court's orders, which can cause serious hardship and pain to the opposing side. To ensure that parties to a divorce follow all court orders, the court uses the procedure of civil contempt.
In Colorado, Rule 107 of the Colorado Rules of Civil Procedure governs the rules and procedures for civil contempt. There are two types of contempt: direct and indirect contempt. Direct contempt consists of behavior that occurs in the presence of the court. Examples of such behavior include disorderly and disruptive behavior, and boisterous conduct or violent disturbances toward the court. Most often, direct contempt proceedings are initiated by the court and not by one of the parties in a case.
The second type of contempt, indirect contempt, occurs outside of the presence of the court. The most common example of indirect contempt is a party's disobedience or interference with an order of the court, such as a parent's failure to pay child support or the refusal to follow the parenting plan. In most post-divorce disputes, the party utilizing the contempt rules usually claims that the person is acting in "indirect" contempt.
To begin an indirect contempt action, the initiating party much file a motion and supporting affidavit with the court. The motion and affidavit include the rule or order that was violated, and the facts showing how the opposing party violated the order. If there are sufficient facts in the motion and affidavit to show that indirect contempt occurred, the court will issue a citation to the offending party to show cause why the party should not be held in contempt.
Once the citation has been issued, the opposing party has an opportunity to admit or deny the contempt allegations. Should the party deny the contempt allegations, the court will schedule a hearing to determine if the contempt allegations can be proven.
When a party seeks to hold the opposing party in contempt, the party may ask the court to impose remedial or punitive sanctions The type of sanctions selected makes a significant difference in the manner in which the contempt proceeding is held. If the party is asking for remedial sanctions, the party must prove to the court that the offending party (1) did not comply with a lawful order of the court; (2) knew of the order; and (3) has the present ability to comply with the order. Punitive sanctions, on the other hand, are more criminal in nature, and therefore the moving party must show, beyond a reasonable doubt, that (1) an order of the court exists, (2) the offending party knew of the court order, (3) the offending party had the ability to comply with the order, and (4) the offending party wilfully refused to comply with the order.
For remedial sanctions, the court may order the offending party to correct the improper behavior, or to remedy the errors that were made. The Court may also order the offending party to pay for the reasonable attorney fees and costs of bringing the contempt action. For punitive sanctions, the Court may order the offending party to pay a fine or imprisonment (up to six months), but only if the Court finds that the party's conduct was offensive to the authority and dignity of the court.
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