Collect evidence before filing for contempt

Posted Thursday, July 28th, 2022 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Earlier in my career I lost a sizable number of contempt petitions I prosecuted because my client lacked the evidence to substantiate his or her allegations of contempt.  One can never expect to win every contempt petition one brings: the other side’s willfulness is always an aspect of contempt and it is rarely possible to learn that side’s explanation for non-compliance until the contempt hearing. 

Yet there is no reason one cannot gather the evidence to support the contempt findings before one files the affidavit or verified complaint to support the contempt petition.  Doing so is often laborious and frustrating.  Typically, the process of gathering this evidence will have me advising the client that he or she needs to gather more evidence to support a particular contempt allegation.  Often this process will have me suggesting that certain allegations of contempt not be pursued, as there is not sufficient evidence to support the claim by a clear and convincing evidence standard.  Few contempt claims can be proven solely through testimony.   Experience teaches me that having my evidence gathered before filing for contempt greatly increases the likelihood of success.

I regularly defend contempt petitions in which it is clear the other side did not gather the evidence before filing the contempt allegation. One can often anticipate this failure by seeing whether the other side requested sufficient time to present the exhibits necessary to document the contempt.  A multiple issue contempt allegation in which exhibits will be needed to prove contempt, and in which the other side requested a 30 minute hearing, is not one in which preparation was made prior to filing.

At trial—and every contempt proceeding is a trial, however small or narrow the issue(s) might be—one needs to present the evidence that will document the contempt.  Further, as compensatory contempt allows fees to be awarded in demonstrating contempt, irrespective of the other’s side’s ability to pay fees, the difference between fully prevailing and partially prevailing can significantly impact whether one’s client is awarded fees and how much fees are awarded. 

Best practice is to ensure one can prove non-compliance before one alleges contempt.

One thought on Collect evidence before filing for contempt

  1. Cassandra says:

    We, as faulty human beings, are just committed to learning some things the hard way.
    Sadly, I count myself in that number. I have an absolute agreement to never have to learn that one again!!

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