It is not uncommon in family law proceedings for the court to make temporary orders pending trial regarding issues of support, custody, and property. These orders define the rights and responsibilities between the parties for the pendency of the case. It is a maxim in family law that orders are only good if you enforce them. Often orders will be violated by either party. There are numerous ways in which an order can be enforced. The recent case of In re Stacy Lynn Marcus 2006 DJDAR 4597 deals with the difficulty of enforcing orders by way of contempt.
The parties were married in 1992 and had a daughter in 1999. The parties sought a divorce in May 2000. In September 2001, while the divorce was pending the Mother and the minor child moved to New York. A status only/bifurcation judgment was entered and the Father subsequently remarried and had another child.
On August 7, 2003, the parties were in court modifying their existing written temporary order. All of the new changes made were oral changes. One of the changes in the order was that Father would now be able to exercise his monthly visit with the minor child outside of the state of New York, provided that all the pick ups and returns of the minor child were in New York. This agreement of the parties was made orally on the record in court with both parties and their counsel present. The trial court then stated that the recital of the order by Father’s counsel on the record was the order of the court, and instructed Father’s attorney to prepare an order.
Thereafter, Father’s counsel prepared a written order that was objected to by Mother’s counsel. Specifically, Mother’s counsel objected to the provisions of the written order that specified that Father’s monthly visits with the minor child could occur anywhere in the United States.
However, over Mother’s counsel’s objections the trial court signed the written order on October 21, 2003, as prepared by Father’s counsel. On October 23, 2003, the signed order was served by mail on Mother’s counsel.
During this same time period, Father had advised Mother on October 18, that for his upcoming October 24 visit with the minor he was intending to exercise same in California. Father had a family reunion planned for that weekend. Relatives from around the world would be in attendance as well as Father’s new child from his subsequent marriage. On October 23, Mother obtained from a New York City Court a protective order precluding Father from exercising his visitation. Following Father’s unsuccessful attempt to exercise his visitation father returned to California without the minor child. He then filed a contempt alleging that the Mother had violated both the August 7, 2003 order, as well as the October 21, 2003 written order.
At the contempt hearing, the parties stipulated that Mother did not have timely notice of the October 21, written order, and as such the contempt proceeded on the basis that the August 7, 2003 oral ruling was the sole basis for the underlying contempt.
The trial court found that Mother had intentionally violated the court’s order. Since this was the second time in the dissolution proceeding that Mother had been found in contempt, the trial court imposed a sentence as follows: a fine of one thousand dollar fine; five days in jail; one hundred twenty hours of community service; and payment of seventy-five hundred dollars of Father’s attorney’s fees.
Mother paid the fine and appealed by way of a writ of Habeas Corpus. The Appellate Court granted Mother’s writ of Habeas Corpus and annulled the finding of contempt by the trial court and ordered that any fine paid by Mother be returned to her.
The Appellate court found that it had no choice but to grant the relief sought by mother. As the court states at the very beginning of the Opinion on page 4597:
Mother does not deny that she committed the acts underlying the contempt. Rather, she maintains that the order she allegedly disobeyed was not a written order, and, therefore, cannot be the basis for a contempt. We agree…
In analyzing the case the Appellate court gave a brief primer on contempts. The court stated on page 4598:
The elements of proof necessary to support the punishment for contempts are: (1) a valid court order, (2) the alleged contemnor’s knowledge of the order, (3) noncompliance.
The Appellate court found that Mother’s argument was persuasive in that there was no order in existence of sufficient particularity to support a finding of contempt. The appellate court cited Ketscher v. Superior Court (1970) 9 Cal.App.3d 6011, for the proposition that in an indirect contempt (an act committed not in the direct presence of the court) a finding of contempt could not be based upon an oral ruling of the court. As the appellate court stated on page 4599:
It has long been settled that the action of the court must be made a matter of record in order to avoid any uncertainty as to what its action has been. (citing cases) The record may be made by a written order signed by the judge and filed with the court (citing cases) or it may be set forth in detail in the court’s minutes. But either way, a writing is essential to avoid the uncertainty that can arise when attempting to enforce an oral ruling.
In granting Mother’s writ the court found that a written order in this particular case had been ordered and was vital. The court stated on page 4599:
The oral ruling was ambiguous … Although the trial court found that Mother knew the agreement allowed a trip to California the finding was based upon inferences derived from the transcript of the oral agreement and from Mother’s subsequent conduct. A finding of indirect contempt, however, must be based upon a clear, specific, and unequivocal order. The oral proceedings did not provide that level of certainty.
The appellate court also cited In re Marriage of Drake (1997) 53 Cal.App.4th 1139, for the proposition that when a minute order has expressly indicated that a written order would be prepared, the oral order has no effect for purposes of a contempt.
Not directly discussed in the case is a question as to whether the August 3, 2003 court order would have been sufficient by its self to sustain a finding of contempt if no written order had been required to be prepared. The Appellate court refers to August 7, 2003 order as ambiguous. But that may only be because of the oral nature of the order. As the Appellate court indicates, even a notation in detail in the court’s minutes would have been sufficient to constitute a writing. An important practice pointer for all practitioners is that whenever a court makes an order that does not require a subsequent written order, it is it is encumbent upon the practioner to check whether or not the minute order is sufficiently detailed enough to constitute an order enforceful by contempt.
The requirement of a writing to constitute an enforceful order can often lead to frustration. As the appellate court notes on page 4599…
The trial judge was justifiably outraged by Mother’s conduct. However, since there was no written order of which Mother had notice, there was no order upon which the contempt finding could be based.
As the Marcus case highlights, enforcement of an order by way of contempt requires a writing of some kind. Absent same the practitioner should consideder alternate methods of enforcement.
