Family Law Contempt requires certain elements to be proven. These are important to keep in mind both when the request is being prepared and at the time of trial. Certainly if you are opposing the requested contempt this is important to know too.
The prima facie elements of contempt are: 1) a lawful order; 2) that the citee (the person being charged with violation of an order) had knowledge of the order; 3) that the citee had the ability to comply (subject to permissible inferences); and 4) willful disobedience.
A written lawful order is required, even for a child support contempt.
For knowledge of the order, proof of personal service is not necessary but is helpful.. Knowledge by the citee’s attorney creates a permissive inference of citee’s knowledge (Moss v. Superior Court (Ortiz) (1998) 17 Cal.4th 396; In re Ivey (2000) 85 Cal.App.4th 793.)
It is assumed that when the court make an order the party had the ability to comply. If contempt is committed close to the time of the making of the order, then the inability to comply is an affirmative defense. (In re Ivey; In re Sigesmund (1961) 193 Cal.App.2d 219; Sorell v. Superior Court (1967) 248 Cal.App.2d 157; Mossman v. Superior Court (1972) 22 Cal.App.3d 706.)
An element of all contempts is willful non-compliance. Willful implies they know what they are doing. (Little v. Superior Court (1968) 260 Cal.App.2d 311.) Reliance on advice of counsel is not a defense to willfulness. An attorney can be held in contempt for advising a client to disobey an order. (In re Bongfeldt (1971) 22 Cal.App.3d 465.)
James Moore is based out of Auburn, California where he routinely represents clients in Placer County, Nevada County, El Dorado County, and Sacramento County. He represents clients in pursuing contempt and pursuing judgment enforcement. He also has experience defending clients against these claims. He is licensed to practice law in the State of California.Â