Rule 92.Civil Contempt and Sanctions for Non-Compliance with a Court Order

Rule 92 is the coercion rule, and it is built so that coercion stays coercion.

Civil, not criminal

Civil contempt sanctions may be used only for compelling compliance with a court order, or for compensating a party for losses caused by the failure to comply. Sanctions that punish an offender or vindicate the court's authority are criminal in nature and are not governed by this rule. The distinction is not a formality: it determines what procedures apply and what the court may do.

Beginning the proceeding

A petition reciting the essential facts alleged to be contemptuous, complying with this rule and Rule 91(b), (c), (e) and (h). It must be personally served on the alleged contemnor as Rule 41 provides -- Rule 43's ordinary post-summons service is not enough. The court may not find contempt without notice and an opportunity to be heard.

The Order to Appear must carry this warning in substantially these words: failure to appear may result in a child support or civil warrant for arrest, and an arrested person may be held in jail for up to 24 hours before seeing a judge.

What the petitioner must establish

At the evidentiary hearing the court must make an express finding on whether the alleged contemnor had notice, and must determine whether the petitioner established three things: the court entered a prior order; the alleged contemnor had notice of it; and the alleged contemnor failed to comply.

The contemnor may then show that the failure was not willful. The court must enter a written order granting or denying the petition, and a contempt finding must recite the facts it rests on.

Sanctions, and the purge that must accompany them

Available sanctions include incarceration, seizure of property, attorney fees, costs, compensatory or coercive fines, makeup parenting time, parent education classes, employment services, and any other coercive relief the law permits -- provided the order includes a purge provision.

That proviso is the heart of the rule. Any order of incarceration, a fine, or another sanction must set conditions for the contemnor to purge the contempt based on the contemnor's present ability to comply. And the court must include a separate affirmative finding that the contemnor has the present ability to comply with the purge, and the factual basis for that finding.

Without a present ability to comply, there is nothing to coerce -- the sanction becomes punishment, which section (a)(2) puts outside this rule entirely. The court may grant a reasonable time to comply.

Deferred incarceration, and review

If incarceration is deferred more than 24 hours to allow compliance and the contemnor does not comply, the other party may file an affidavit of noncompliance; on that or on its own the court may issue an arrest warrant, and the contemnor must be brought before the court within 24 hours of arrest to determine whether the present ability to comply continues.

And once a contemnor is incarcerated, the court must hold a review hearing at least every 35 days, determining whether the contemnor has been able to comply and, if not, reviewing the present ability again, continuing or modifying its orders accordingly. Present ability is tested repeatedly, not established once.