Episode 122 - How to Enforce a Court Order through a Contempt of Court Action
Leh Meriwether: Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And you're listening to the Meriwether and Tharp Show on News 95 and AM 750 WSB. Here you learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and from time to time even tips on how to take your marriage to the next level. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.
Todd Orston: Good energy.
Leh Meriwether: Oh, thank you.
Todd Orston: No, seriously. We must be about to talk about some interesting stuff because you brought it that time.
Leh Meriwether: We are. Well, actually we're talking about...
Todd Orston: Contempt.
Leh Meriwether: ... contempt. And, more particularly, that's the mechanism by which you enforce a court order. Now, fortunately, most people when they get a divorce they take the divorce decree and their parenting plan and they just put it in a drawer. And if they had done a good job working through their divorce and co-parenting, they almost never have to look at it again. But occasionally you'll have folks that, well maybe they weren't happy with the way things turned out. They may have had a trial and got a judgment from a judge. Because we often see that, the cases that go to trial, people are so upset by the verdict, or not necessary by the verdict but the fact that they were in a public forum and both spouses were pointing the finger at each other, it almost creates an event that it's hard for either parent, spouse to forgive the other. And the only way to get back at them at the end is to not comply with the order. And so you've got all kinds of situations where you see this. What are our most common situations where we see noncompliance of an order?
Todd Orston: I would say most of the time it's going to be broken down, obviously, into two different subjects, if you will. One's financial. Failure to pay child support, failure to pay all the alimony that you're supposed to pay. Or sometimes, on the not so much financial but transfer of assets, if assets were supposed to be transferred within a certain period of time. And then, of course, you have issues relating to custody and parenting time and claims of interference with parenting time or decision-making authority, things like that.
Leh Meriwether: And man, the parenting ones can get real ugly.
Todd Orston: Absolutely. But you know what? The financial ones get pretty ugly too because we've seen it. We've seen situations where people are depending on that support. They are absolutely dependent on it. And when the money dries up or instead of- I'm just using a number- $1,000 it's, "Well, I can only pay you $100," or I can pay you this or that.
Leh Meriwether: Right.
Todd Orston: And, next thing you know, we've had clients where they come to us and they're like, "I'm about to lose my apartment. I'm about to lose my car. I'm in dire straits and really it's because of my former spouse's or the other parent's noncompliance."
Leh Meriwether: Yeah, and sometimes, when we're talking about equitable division, we've seen situations where someone agrees to take on a debt such as a credit card. Says, "Well I'll pay that credit card...
Todd Orston: In the other party's name.
Leh Meriwether: ... in the other party's name or joint names.
Todd Orston: Right.
Leh Meriwether: And then they don't pay it. And then so the credit card company sues the person that wasn't responsible in the divorce decree. And now they have to file a contempt against the person who asserted they would be responsible for it.
Todd Orston: That's right.
Leh Meriwether: All right, like I said earlier, the times we usually see this is someone's not happy with the result at a divorce trial or maybe there's been a change in financial conditions. Maybe someone lost their job. We saw that really, what was it? 2008? I'm trying to remember. 2008, 2009 when we had the great recession, as they call it. We had a slew of contempt cases because people just lost their jobs.
Todd Orston: Yeah, but what's interesting is contempt, focusing on that for a moment, we're talking about a willful act.
Leh Meriwether: Right.
Todd Orston: Somebody failing to do something, pursuant to a court order, despite their ability to do it.
Leh Meriwether: Right.
Todd Orston: During the great recession we had a lot of people. Yeah, there were a lot of filings for contempt. The problem is a lot of those situations, there might not have been that requisite willfulness. If someone loses their job and they can't pay, first of all, the best thing you can do is file a modification action.
Leh Meriwether: Yep.
Todd Orston: If you don't do that, then every month that money is due and owing, and the court's not going to and can't forgive it. So if you can't pay, then at the very least you have that defense that, "Hey, it's not willful. I can't pay." What we're going to be talking about more in this show is really the other situation where, due to a motion, something else, someone fails to pay, refuses to pay everything that's due and owing, and what are some of the steps you can do to enforce the order and get the money that you are due and owed?
Leh Meriwether: And it's interesting you say a motion because we've seen situations where a spouse or ex-spouse, they meet someone new. And a new significant other comes in the picture and says, "Well you really shouldn't be paying that much. You're overpaying. You're just overly generous." And they say, "Oh yeah, I'm overly generous," and they quit paying or they don't pay as much. And now the new significant other has more of that person's money to do things, go out on lavish trips and that sort of thing. And that's often what triggers the emotion of, "Oh my gosh, not only did I not get paid this month the support I was owed, but they went on a vacation to the Mediterranean."
Todd Orston: Which looks so good to the court.
Leh Meriwether: Yeah.
Todd Orston: Judges love those situations. "Oh, you didn't pay all of you child support but how was the Bahamas trip?"
Leh Meriwether: Yeah.
Todd Orston: Yeah. Usually it doesn't work out well for the payor spouse.
Leh Meriwether: No. A contempt of court technically, it occurs when you've got an order that's written up. That's important. It can't be an oral order. And it's filed with the clerk's office. So once an order from a judge is filed with the clerk's office, it is now enforceable by contempt. And so contempt is a willful failure to abide by that written court order.
Todd Orston: And it's very simple. Sometimes people will call and they'll be like, "I don't know what to do. I don't know if this is contempt." It is very simple. You look at the order. You look what the order requires. Either it was done or it wasn't done. That's the first step. The second step has to do with willfulness.
Leh Meriwether: Right.
Todd Orston: Why didn't the person do what they were supposed to do? Either they had no ability to or they had an ability to and they chose not to.
Leh Meriwether: Yep.
Todd Orston: So it's very simple. There has to be a court order. It can't be he promised or she promised to pay this and stopped doing it. There needs to be an order requiring it because it is contempt of court.
Leh Meriwether: Right.
Todd Orston: It's not contempt of agreement. It's contempt of court. An agreement reached by parties that is entered into an order, that's a different story.
Leh Meriwether: So you have situations where parties will enter into a settlement agreement but it hasn't been incorporated into a final order, and the person quits abiding by the agreement. Because a lot of times you'll have agreements where they say, "Well we're going to start doing this right away." Well you can't ask the judge to enforce that agreement until the judge has incorporated that written agreement into the court's order. And at that point it's enforceable. But before then, you could have an email chain going back and forth saying I'll pay that bill, but if they judge doesn't incorporate that email chain into its order-
Todd Orston: It's not a legal obligation.
Leh Meriwether: Exactly. It may be a contractual obligation.
Todd Orston: Sure.
Leh Meriwether: If there is consideration paid. But now you have to file a lawsuit.
Todd Orston: That's right. It can't be enforced by a court because it wasn't subject to a court order.
Leh Meriwether: So courts are allowed, they have the power to enforce their orders. And that's why they say contempt of court. The court has all kinds of discretion and remedies that's available to it. And we're going to talk about those a little bit later. But I think that... I want to do a side note right here and just say we're talking about family law. Because there's sometimes people will get a judgment in court, so let's say they go to magistrate court or something like that and they get a judgment from a judge there, and it says so and so shall pay...
Todd Orston: Is found liable.
Leh Meriwether: ... is found liable for $5,000.
Todd Orston: Right.
Leh Meriwether: And then they don't pay it. You can't go back to that judge and say, "They're in contempt because they didn't pay it." No, it's just a judgment, and now you've got to collect on that money.
Todd Orston: Totally different path that you have to take.
Leh Meriwether: Right. We are talking about, at least here in Georgia, we are talking about a superior court issues an order that the person, in the context of a divorce or similar family law matter, and they don't comply with that order. And so the way you get enforcement of it is going back to that judge. Or a different judge, sometimes you can go to a different judge. But usually it's the same judge.
Todd Orston: Yeah.
Leh Meriwether: Now I will say one caveat real quick is that if you're in court and a judge tells you to do something in that courtroom, like, "Sir, you need to answer that question." Even though that's not been reduced to writing, the judge can have you arrested in the courtroom.
Todd Orston: It's another use of the word contempt.
Leh Meriwether: Right.
Todd Orston: If you engage in rude behavior, if you are defiant to a judge in court, then the court can hold you in contempt of court, that you have shown great disrespect to the court. And you could be sanctioned. You could be sanctioned financially. You could be put in jail.
Leh Meriwether: Yep. And so we've seen that before. Judges have sanctioned lawyers too and said, "If you ask that question again, I'm finding you in contempt and you're going to pay $100 fine." And then there've been situations where the lawyer kept doing it and the judge says, "One more time and you're going to jail." So the court has broad discretion in what they can do to enforce that order. And up next we're going to talk about the steps that you should take, if you have a situation where someone's not paying child support or alimony, to enforce that order.
Leh Meriwether: Welcome to the Meriwether and Tharp Show. This is Leh Meriwether, and with me is Todd Orston. If you want to read more about us, you can check us out online at atlantadivorceteam.com. And I should probably also mention that if you're listening to this show and you want to go back and listen to it again or you want to read the transcript of the show, you can go to divorceteamradio.com and get transcripts of the shows and listen to older shows. You can also subscribe to us in iTunes and SoundCloud at that website as well.
Todd Orston: Why are you looking at me? I already knew those things.
Leh Meriwether: You wanted me to do a little bit different intro.
Todd Orston: Hold on, let me take some notes.
Leh Meriwether: Okay.
Todd Orston: That was great. I can listen to all of my shows.
Leh Meriwether: Yes.
Todd Orston: All right, fantastic.
Leh Meriwether: I just wanted make sure you knew that.
Todd Orston: All right. No, I appreciate that.
Leh Meriwether: Because we were going to talk about how you can get better.
Todd Orston: All right. All right.
Leh Meriwether: Well today we're actually talking about how we can enforce court orders. And we're staying focused on family law and divorce law. A lot of this stuff is going to apply across in other states but, just so you know, we're focusing on Georgia. So if you're listening to this in another state or you have an order or you may live here in Georgia and you have an order from another state that you want to enforce in that state, you're going to want to consult with a lawyer about that before just running to the courthouse.
Todd Orston: Yeah, the basic concept is going to be the same, meaning there's an order, it required behavior, the party didn't engage in that behavior and didn't do what was required of them, and therefore it constitutes what we call contempt of court. But again, every state might have, and probably does, a little bit different methodology, a little bit different process that you have to follow in order to actually bring a contempt action and get someone or deal with somebody who is failing to comply with a court order.
Leh Meriwether: Yeah. All right, so let's talk about child support and alimony specifically first, because there's multiple areas. That's one area, it's financial. So you've got support payments. You were supposed to pay a debt. You were supposed to transfer an asset. We'll get to that later. And we'll also get to later what to do in situations that involve parenting time and issues concerning the legal rights, legal custody. Because, man, those can get really ugly. All right. Not that financial can't get ugly. But here's the process that we recommend.
Leh Meriwether: Someone didn't make their child support payment, didn't make their alimony payment. The first thing we say is just pick up the phone and call them. You never know. There are situations where the parents don't talk a whole lot. Maybe the divorce was rough. But maybe the check literally did get lost in the mail. Maybe there was a mess up with the bank. Because lots of times people will put it on auto-payment with the bank. And maybe there was a mess up with the bank. Maybe they changed banks. There could've just been a hiccup. So before you raise the tension between you and your spouse, or ex-spouse, pick up the phone and call.
Todd Orston: Yeah, and before you start thinking that we're just trying to advocate for a more pacifist kind of approach, understand that we're approaching it this way because I've, for one, actually seen judges get angry at parties who brought a contempt action for something small.
Leh Meriwether: Yeah.
Todd Orston: For instance, one missed support payment with no efforts to try and collect or figure out why the payment was missed or why you were shorted a little bit of money, racing to court with that contempt action, no other prior contempts. I've actually seen courts say, "Well why didn't you just pick up the phone and ask."
Leh Meriwether: Right.
Todd Orston: "Why are we here in court wasting time, money and effort to deal with this issue when you could've just said, "Hey, maybe you forgot but you owe me this money," and maybe the issue would've been resolved. Usually we will tell people, for support issues, we'll tell people don't wait five months, six months, but the first one is missing, pick up the phone, write an email, write a letter. Tell them, "Hey listen, it needs to be paid. I need this money. And if you don't I'm going to have no choice but to go to court, file a contempt and let the court deal with this." And if, after all of those efforts, they haven't done it, then fine. You have to do what you have to do. But at least you can look the court in the eye and say, "I tried everything to avoid this and to avoid having to file or come to court."
Leh Meriwether: So the first thing, pick up the phone, call. Say, "Hey, I noticed I didn't... You normally are pretty good. I get the check on the fifth of the month. But it wasn't there this month. Is there anything I need to know about?" Maybe the person just lost their job. So just pick up the phone. If they say, "Oh, I'll have it to you," then sit down, send an email saying, "Hey, it was good to talk to you today. This is to confirm our conversation that you're putting the check in the mail today." And you save that communication. Because if it doesn't come in, you're going to want to have that email to show the judge that you made an effort. And you start with a simple telephone call. And so, like email, you can use text messaging too. It's just a little harder to print it. But start there. Verbal, by phone or in person. Follow it up by written communication. Save that written communication. And at that point, the next... There's actually one more step you can take. You can hire a lawyer to write a letter. Because sometimes that is very motivating people because they say, "Okay, they're serious now. I need to pay up. I need to take care of this."
Todd Orston: Yeah. And that doesn't mean, and we're going to get to this also. Part of a contempt, if you have to file against someone, part of the contempt will include a request for fees. Now I can't tell you and I won't guarantee that a court is going to award fees, but oftentimes that ends up being a part of the award. Because the court looks at it like, "Look, but for your failure to comply with the court's order, we wouldn't be here today."
Leh Meriwether: Yep.
Todd Orston: And so, yeah, they had to spend X amount of dollars. If you hire an attorney, if it's a $500 payment and you haven't even picked up the phone or written an email, you race to court, you file, and you're looking at a court saying, "Well I need to pay my attorney the $4,000 it took to get here," and the other party walks in with a check for the $500 saying, "I've been trying to pay this to the attorney for three weeks and I'm sorry I was late but they didn't even try to get the money from me," the court may not award those fees.
Leh Meriwether: Yeah. So most of the time, if you are reasonable in your collection efforts, the court... I've never had a court not award fees.
Todd Orston: As long as you've been reasonable.
Leh Meriwether: Exactly.
Todd Orston: Or you've put forth that effort.
Leh Meriwether: All right, so the court has many options. We've mentioned them already. They can throw a person in jail. The problem is if you're trying to get support from them, they can't pay if they're in jail. Because if they get thrown in jail, they can lose their job. So sometimes what the court will say is put an income deduction order in place. So they'll say, "All right, I find you in willful contempt and you owe this, plus you owe these attorney's fees." And they'll say, "You need to write a check for these attorney's fees," within 30, 60, how many days it is. And then the court can say, "And I'm entering an income deduction order for the past due and the go forward," and then it comes right out of the employers... The employer has to deduct it out of their check. So that's an option for the court. And then the court can, some courts will set what's called a compliance hearing. So they won't close the case. What they'll do is say, "You need to do these things and we're going to come back to court 90 days from now to make sure that you're complying, that the IDO has been placed, income deduction order is in place, and that you paid your attorney's fees."
Todd Orston: Yeah, let me be very clear. Judges do not like putting people in jail. They don't. And a lot of the judiciaries in the different counties, actually they have set their own rules that they try to avoid putting civil litigants in these types of cases in jail unless the behavior's egregious.
Leh Meriwether: Right.
Todd Orston: Unless it's really, really bad. So if you are the one who is owed the money and you are thinking, "I'm just going to make a demand and threaten jail," jail doesn't often happen. It usually takes a bunch of opportunities that the court will give, pay X, purge with this amount, do X, Y, Z. And if after that payment isn't made and the party doesn't comply, I've had judges, even then, say, "All right, one more try."
Leh Meriwether: One more, yep.
Todd Orston: And it's frustrating to us because we're sitting there going, "I guarantee, you put this person in jail, they will pay."
Leh Meriwether: Yeah.
Todd Orston: But courts are really reluctant.
Leh Meriwether: Now there are exceptions to that.
Todd Orston: Of course.
Leh Meriwether: So don't walk into the courtroom thinking your judge is one of them because we've seen judges where they are so particular about their court orders.
Todd Orston: You are right.
Leh Meriwether: And you don't abide by it, you're going to jail the very first time.
Todd Orston: Yep.
Leh Meriwether: So you need to come to court... Now if you come to court and say, "Judge, I'm sorry, here's a check," you've purged yourself of that contempt. And so often the court, their only remedy at that point is just to order an award of attorney's fees. There are situations where you can't necessarily purge yourself of the contempt and the court might punish you for violating an order for a past action. But when it comes to support, if you come in there with a check you can usually avoid that.
Leh Meriwether: And there's one more thing that can be done on the civil side when you hire a lawyer is if the other party has a retirement account, a 401(k) for example, in that particular situation you can get what's called a qualified domestic relations order, or QDRO for short, and you can actually go seize with that QDRO, you can go to that person's retirement account, post-divorce, and get the child support that you're owed. And they're supposed to at that point, since it's for child support, pay you the full amount. And the obligor, the one who was supposed to be paying child support, they're going to actually have to pay the taxes on that. So that is another mechanism that the court has to enforce its orders when it comes to child support. And with alimony they tend to... Alimony's treated a little bit differently. There's not as many laws for that. And I think you can get a QDRO for alimony, I just haven't had to do anything like that in a long time. It's almost always been child support.
Leh Meriwether: Hey, and up next we're going to get into there's another way to collect child support and it's Child Support Services. Most states have a... I think every state has it. What we're going to talk briefly about the pros and cons of using Child Support Services to collect past due child support.
Leh Meriwether: Welcome back to the Meriwether and Tharp Show. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And if you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to listen to past shows or listen to a transcript of this show, you can do to divorceteamradio.com.
Leh Meriwether: All right, what we're talking about today, how to enforce a court order. And we're breaking it down. We're talking about the financial component, if someone hasn't paid child support or alimony or hasn't paid an debt obligation they said they would pay or they haven't maybe transferred an asset, how do you make that happen? And we're also going to talk about, a little bit later, what happens when somebody is not complying with the parenting plan, which is also a court order in Georgia, and maybe not excluding another parent from a child's life, what do you do then too?
Leh Meriwether: But where we left off was child support. And there is a civil remedy that you can go through the courts, hire a lawyer and go through the courts. There is also an administrative remedy, and it's called Child Support Services here in Georgia. And I am pretty sure that every state here in the United States has a version of Child Support Services. I just don't know if that's the name or not. But most of these have the ability to go to the other states. So if you file a claim here in Georgia and the other person lives in Texas, for example, the Georgia Child Support Services will contact their equivalent in Texas to pursue the child support. Now, there's pros and cons to this. The cons, it's a government agency.
Todd Orston: It's a bureaucracy, it's a big entity. And your case is not their priority.
Leh Meriwether: But I want to say something because those folks at Child Support Services, they work hard.
Todd Orston: Very hard.
Leh Meriwether: The problem is they have so many cases.
Todd Orston: That's the problem.
Leh Meriwether: If you've got 1,000, 2,000 cases, it's really hard to focus in on your one case.
Todd Orston: Yeah. Me saying it's not a priority is not a slam on them. I don't care what you do for a living, if you multiply by 100 the amount of customers, clients or whatever that you yourself have to deal with, you're not going to be able to do a good job for that many people.
Leh Meriwether: Right.
Todd Orston: And unfortunately, as with many underfunded agencies, there's just not enough people to go around.
Leh Meriwether: Yep.
Todd Orston: So, yeah, it becomes an issue where unfortunately they're not going to be able to give you the focus and the attention. And that sometimes becomes very apparent in how they deal with these things. It's what I'm going to call battlefield triage.
Leh Meriwether: Yeah. That's a good example.
Todd Orston: It's one of those things where it's like they just need to get you in and out. So what they end up doing is they will end up contacting the obligor, the person who owes the money, with the obligation, and they will very quickly try and get some information and then, in essence, cut a deal. "Okay, well what can you pay? I think you pay... Fine will you agree to this? Fine." And next thing you know, you're basically being not asked but told, "Here's the deal. This is what we're going to accept and this is what you're going to start getting paid."
Leh Meriwether: Yep. Going back to the payment, we're talking about the payment schedule.
Todd Orston: The arrearage.
Leh Meriwether: What the Child Support Services can't change is the amount of the arrearage.
Todd Orston: Correct.
Leh Meriwether: They can't change...
Todd Orston: I'm talking about the arrearage.
Leh Meriwether: Yeah. So they can say, "Well I know you owe $10,000 but we'll take $100 a month."
Todd Orston: No.
Leh Meriwether: They could do that.
Todd Orston: Sorry, yes.
Leh Meriwether: But they can't say, "Well we're going to reduce the $10,000 to $5,000."
Todd Orston: Correct.
Leh Meriwether: No one can do that. Even the party who is owed the money can't say, "I'll take $5,000 instead of $10,000."
Todd Orston: Only the court can change it by modifying by a modification order.
Leh Meriwether: Right.
Todd Orston: That's the only way to change the amount that is due. The arrearage is really the only thing that Child Support Services is going to care about. And so basically if they say, "Well he or she owes $10,000. Based on income they are going to pay their normal ongoing support plus $25." Then you're going to be a lot older by the time that debt is paid off.
Leh Meriwether: Right.
Todd Orston: So that is one problem with using Child Support Services.
Leh Meriwether: But the advantages are they can garnish income. They can actually do QDROs in certain situations, or something similar. They can also suspend your driver's license. And most states have this now where if you don't pay they can suspend your driver's license. And Georgia even has it where they can contact licensing authorities. When I say licensing...
Todd Orston: Hey, do you like to fish? Do you like to hunt?
Leh Meriwether: Right. They can take your fishing license.
Todd Orston: Are you in a business like you're a mortgage broker and you are basically governed by some agency by the state of Georgia.
Leh Meriwether: Licensing authority.
Todd Orston: A licensing authority.
Leh Meriwether: Hairdressers.
Todd Orston: Yep.
Leh Meriwether: Cosmetology.
Todd Orston: Yeah. If you owe a certain amount of money, that agency can be instructed to and can basically suspend your license to practice and to work. And then there are other things like fishing licenses. You like to fish? Well guess what? Your license just got revoked. You like to hunt? Your license just got revoked. You like to drive? Well you better like Uber.
Leh Meriwether: Yeah.
Todd Orston: So there are things that they can do and will routinely do to try and, in essence, put pressure on the obligor to make the payments that are due.
Leh Meriwether: Yeah. So that's the advantage that Child Support Services has over really any other organization, I mean a private lawyer.
Todd Orston: Right. Well the private lawyer isn't going to do anything on their own. See, what's interesting is that Child Support Services can put those things in motion without a court order.
Leh Meriwether: Yes.
Todd Orston: But the obligor can, in essence, appeal to the court...
Leh Meriwether: Yeah.
Todd Orston: ... if they feel that they have been, in essence, wrongly accused or if something improper was done. But again, if you owe the money then the department had the right to basically put these things in motion and have your licenses revoked. A private attorney can't do any of that.
Leh Meriwether: Yeah.
Todd Orston: We can look to the court for sanctions to try and force compliance. But we have no authority to basically tell some governing body, "Yeah, don't let them fish anymore."
Leh Meriwether: Yeah. Now this is the last advantage, and then we're going to move on. But the last advantage is that there's now a parental accountability court. So now the judges may not necessarily throw someone in jail right away. If someone really is having trouble getting a job, the law has changed now that there's a parental accountability court. I don't know exactly how it works, but the goal of it is to try to help someone get a job so they can pay their child support.
Todd Orston: The analogy I would use is sort of like drug court where the courts are recognizing there are people out there that have legitimate problems.
Leh Meriwether: Right.
Todd Orston: Rather than incarcerating or penalizing people that way, it is better to try and rehabilitate. Reading from the website, it basically says, summing it up, that they assist to transition non-custodial parents with barriers to self-sufficiency through parent accountability, employment and education. And it goes on to say and includes substance abuse treatment, job assistance and placement, short-term training, coaching and mentoring, educational services and Georgia Work Ready as an alternative to incarceration.
Leh Meriwether: And this is a relatively new court so I don't know its success rate or anything.
Todd Orston: Right.
Leh Meriwether: Just mention that that's another avenue. All right, so most of the time, if there's something significant and you've got an executive, those people tend to not go the Child Support Services route. They hire a private attorney.
Leh Meriwether: All right, so let's talk about custody. Let's switch gears, talk about custody. What's the right time to file a contempt regarding custody?
Todd Orston: What I usually tell clients is sort of like what I was talking about before. One small problem, you don't want to file a contempt.
Leh Meriwether: Like showing up late.
Todd Orston: Showing up late for a pickup/drop off. All right, routinely showing up late, meaning it's now going on the fourth time, fifth time, tenth time, twentieth time. And you have given warning after warning. And by warning I don't mean a threatening email or...
Leh Meriwether: "I'm calling the police."
Todd Orston: Right. It's, "Hey, I really am asking, please, be on time because last time I sat there for 30 minutes. Last time I sat there for 45 minutes," whatever the case is. If you have gone to those lengths, then it may get to a point where you have no choice but to file for contempt. I usually tell people think of it terms of you're filling up a gas tank, if you will. If it's a really small failure to comply, you got to save those up. And at some point, and there's no definitive, "Oop, the tank is full," kind of moment. But at some point you're going to get to that point where you're like, "Okay, I think the tank is full or close to full." Talk to an attorney and they'll be able to confirm whether or not you have enough not only to prove contempt, but also to not anger the judge for, in essence, bringing the case too soon.
Leh Meriwether: Yeah. And so if you bring an action for a contempt for a violation of parenting time, so maybe it's, like you said, the regular tardiness, fights over holiday parenting time, maybe legal custody like someone enrolled someone in an extracurricular activity without...
Todd Orston: Those are bigger, yeah.
Leh Meriwether: ... without discussing it.
Todd Orston: But some of those are bigger. And you may have to act quickly. You lose an entire weekend, you lose an entire holiday, you lose some big portion of your summer parenting time, that I believe rises to the level of that's a major.
Leh Meriwether: Right.
Todd Orston: And unless the other party's willing to immediately give you some makeup time and assurance that it's never going to happen again, you may have no choice but to go to court at that moment and file your contempt.
Leh Meriwether: Yep. So up next we're going to get into what remedies does a court have on a contempt action when you're dealing just with custody. What are their limitations? And then what are the court's limitations when you try to enforce the payment of a debt or to split up an asset? What sort of remedies does a court have in those situations? And then we're going to end it with how is it that you should be prepared for contempt if you've been accused of it?
Leh Meriwether: Welcome back to the Meriwether and Tharp Show. I'm Leh Meriwether and with me is Todd Orston. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Well Todd, we're talking about how to enforce child support and alimony orders and final decrees of divorce. And right now we're talking about how to enforce a parenting time violation. So you have an order laying out who gets custody of the kids when or who has legal custody of the children, who gets to make final decisions when it comes to extracurricular activities, health care, school, religion. You're talking too much, we need to keep going.
Todd Orston: Yeah, I'm done. I think I... But the value in my words is incredible. My silence is deafening.
Leh Meriwether: All right, so let's talk about it real quick. We're going to wrap up this part about the custody. And we've kind of organized this not necessarily importance but frequency when we see these cases. We started off with child support and alimony because those to us are the most frequent ones, followed by parenting time violations. Now the limit the court has... So if you bring an action, let's say you lost a weekend, a parent held on intentionally, willfully held on to the children over the weekend, and you bring a contempt action for that, one of the court's remedies is to throw the other parent in jail as a punishment, award you attorney's fees, and award you some makeup time. So the court has that. They can make minor changes or adjustments to the parenting time.
Leh Meriwether: But they have limits. They can't literally change custody. So if a parent, if the primary custodian, the one who has the children most of the time, is doing some really bad things, excluding the parent from all sort of legal decision making, they're refusing to co-parent and it is absolutely totally egregious, a court still can't change custody in a contempt. You have to bring a modification case.
Todd Orston: Right. And that's what I was about to say. That's why quite often, and I'm not saying most of the time, but quite often you will find that especially and really only when someone is doing this through a private attorney, not through child support enforcement let's say, you will see both a contempt filed and a modification.
Leh Meriwether: Yeah.
Todd Orston: Because if it's egregious enough, and sometimes it is, sometimes it's the second contempt on the same issue or the third contempt, meaning interference with custody let's say, and it's happened again and again and again, the person's already been held in contempt once, maybe this is the second time, third time, that at the same time they will bring a contempt and they'll bring a modification. Basically saying to the court, "I want this court to not only be able to sanction the bad behavior and just fix what was broken, but we need to make some more material and significant changes so that this doesn't happen again."
Leh Meriwether: And circling back around on that, we've seen situations where the parties were having problems co-parenting. But it's more of not a willful thing, it's just they don't know how. So before running to the courthouse for a contempt action in those situations, I like to offer alternative remedies. Because sometimes these outside the court system remedies are much more effective than getting in front of a judge. So if you have the co-parenting trouble, consider co-parent counseling. So there's great co-parent counselors out there and coordinators who, if you can convince the other parent to go with you, sit down and see if you can work out your struggles. It could be a communication issue. And the co-parenting counselor can call people out, say, "Hey look, I noticed you're saying this. Well your mom over here is getting really upset when you say that. Let's change the words you use." And that can make a huge difference.
Todd Orston: Yeah. And there's a secondary value there. First of all, if you're going to make the request, it needs to be sincere.
Leh Meriwether: Right.
Todd Orston: Meaning don't just make it to make it.
Leh Meriwether: Yeah.
Todd Orston: If you say, "Let's go to counseling," then be ready to go to counseling and give it your all.
Leh Meriwether: Exactly.
Todd Orston: But there is a secondary value that if you are the one who is offering that olive branch and the other party ignores you and you have evidence to show, you have emailed, you have written, you've begged, "Come on, let's go get some help so that you and I can learn how to co-parent," and they are just brushing your offers to the side and ignoring and still engaging in bad behavior, the court's going to end up seeing those communications and those efforts and it will definitely work in your favor.
Leh Meriwether: Yeah. All right, well let's talk about what happens when someone doesn't comply with the asset or liability section of a settlement agreement that's been incorporated into a final judgment. And I like to use the example of let's say an IRA. Someone was supposed to split an IRA 50-50. Well the number one thing we're going to tell people is don't wait. I've seen a case where...
Todd Orston: I usually don't say it exactly like that. But yes, it's the same message.
Leh Meriwether: Okay, good.
Todd Orston: All right.
Leh Meriwether: But we've seen situations where the person was supposed to split the IRA. And one person, the person who was supposed to receive it waited 10, 15 years before they brought an action for contempt. Well the other person spent the money. It was literally gone. And all the court could do was... Now this person apparently had a problem too and they become disabled and they spent their money. There was nothing... The court held the person in willful contempt but the party that waited just didn't get their money.
Todd Orston: Well if there are no other monies that the court can grab onto...
Leh Meriwether: Right.
Todd Orston: Like it'd be very easy if we're talking about a millionaire and $100,000 was supposed to be transferred. That money is gone but there are five other accounts with $100,000 in it. The court could then say, "Okay, you have three days, two days, one day," whatever it is, "to pay $100,000. I'm not telling you to take it from some separate account. But I know you have it. And if you don't pay within this period of time, you are going to jail."
Leh Meriwether: Yeah, and you could sit in jail for days and days and days till you do pay it.
Todd Orston: That's right.
Leh Meriwether: Because the court can set a purge amount. And you can't get out until you pay that purge.
Todd Orston: That's right.
Leh Meriwether: Now I think this is really important for people to understand. When it comes to equitable division, dividing up your marital estate, who pays what out of the debts, who gets what out of the assets, a court in a contempt action cannot rewrite your agreement. So you can't ask for a relief that would wind up changing what your original agreement was.
Todd Orston: That's what the modification is for.
Leh Meriwether: Right. Well, but you can't...
Todd Orston: Not for equitable division, right.
Leh Meriwether: Right. You can't modify that.
Todd Orston: If you're trying to change something other than equitable division, at least here in Georgia, you cannot change. You're correct.
Leh Meriwether: I'm pretty sure anywhere you can't change it.
Todd Orston: Yeah. Anything else, you can try and modify.
Leh Meriwether: So let's talk real quick about suggestions for people that are going to file for contempt themselves. Because it's always helpful to hire a lawyer, but a lot of these cases are so simple and straightforward you don't have to hire a lawyer. So the first thing I would say is show up to court with three copies of the order, one for the opposing party, one for you to talk off of, and one to hand to the court as an exhibit. And then dress appropriately. If you're the defendant, don't show up with a Rolex and an Armani suit and say, "I can't afford to pay this money."
Todd Orston: I have actually seen situations like that where someone is claiming poverty and they come to court dressed to the nines.
Leh Meriwether: Right.
Todd Orston: And I'm sitting there just silently giggling like, "Oh, I cannot wait to watch the judge say, 'Oh really? You didn't pay your however much in alimony, and what kind of a watch is that? And those shoes? And tell me about the belt.'" One person, I swear, must of been wearing $10,000 worth of clothes. Anyway.
Leh Meriwether: I've seen that before too. And the court literally asked, "Did you try to sell your watch?"
Todd Orston: That's right. Because, very quickly on that, I know we're running out of time but you have to, Georgia law requires that you do everything you can to comply with the court order. And that means you need to beg, borrow, do everything but steal...
Leh Meriwether: Yeah.
Todd Orston: ... in order to comply. And if you haven't borrowed against 401(k), IRA, whatever, then you're going to get in trouble. If you have not tried to go to friends and family and borrow money, if you haven't tried to get credit cards to use those to take cash advances, you are obligated to put forth that level of effort and if you don't then you have not done everything you can, and it's willful.
Leh Meriwether: Yeah. All right, so if you're showing up to go after that person that's been willful, make sure, in addition to showing up with extra copies of the order, you have a concise breakdown of what you contend has been violated. You want to be able to tell the judge in just a sentence, at most three unless they violated a lot of things, but just say, "They violated this section, this section and this section. And judge, here's a breakdown of the child support or the alimony that they owe me."
Todd Orston: "Section one said he was supposed to pay $1,000." "Okay, did you receive $1,000 by that date?" "No, I did not." Okay, so then the focus is on the payor, the obligor. "Sir, are you aware and do you agree you were supposed to pay $1,000 by that date?" "Yes." "Did you pay it?" If they say no, done. If they say yes, "Fine, show me the proof. Show me a bank record where it proves you transferred $1,000 in compliance with the order."
Leh Meriwether: Right.
Todd Orston: If they can't do it, it never happened.
Leh Meriwether: Now the only two... I mean there's a few defenses to a contempt order. And one of them is a possibility. Let's say you agreed to something, particularly an asset division, that's just impossible to do because you didn't understand that you couldn't divide something. That's a defense. Maybe it's not willful because you just lost your job and had been evicted from your home. Or are suffering from a major health crisis and you've been in the hospital. Because that's not willful at that point. The hospital took all your money to pay for your medical bills. Or if there's ambiguity in the court order so that you're not sure what you were supposed to do. A court can't hold someone in contempt if the order's ambiguous.
Leh Meriwether: But I will tell you what's not ambiguous.
Todd Orston: We're done.
Leh Meriwether: We are out of time. Well, you know what? I hope you got a lot out of it. If you want to go back and listen to any of it, check us out at divorceteamradio.com. Thanks so much for listening.