Saturday, March 14, 2009

Civil Contempt In Family Law Cases

Many times in family law cases, the question or issue arises as to the liability of a party to comply with terms of custody, visitation, and or child support. Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court. See, Ex parte Padron, 565 S.W.2d at 924 (citing Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding)).

Texas case law dictates that command language is essential to create an order enforceable by contempt. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding); Ex parte Padron, 565 S.W.2d at 924; see also Ex parte Duncan, 62 S.W. 758, 760 (Tex. Crim. App. 1901) (orig. proceeding) (stating the order alleged to have been disobeyed “must be in the form of a command”).

So often, parties recite terms in final orders such as a Final Decree of Divorce. However, merely incorporating an agreement into the recitals of a divorce decree, without a mandate from the court, is not sufficient. See, e.g., In re Dupree, 118 S.W.3d at 916 (holding that a party cannot be held in contempt for failure to pay alimony when his agreement to pay was incorporated in the court’s divorce decree without command language); Ex parte Harris, 649 S.W.2d 389, 391 (Tex. App.—Corpus Christi 1983, orig. proceeding) (holding that an agreement to pay child support that is incorporated in the parties’ divorce decree is not enforceable by contempt because the decree did not order the parties to comply with the agreement).

In other words, there must be something more than just an agreement term in the final decree to be enforceable as a contempt charge. True, terms under an agreement such as a final divorce decree is enforceable and valid just as with any other valid written contract. But to enforce a terms as contempt for failure to comply there must be a specific command or "order" from the court to comply, otherwise the term cannot be enforceable under contempt if a court never ordered it in the first place. A contempt arises from an order from a court, thus the term "contempt of court".

In Ex parte Gorena, the court upheld a contempt order for failure to make agreed payments incorporated in a divorce decree. See Ex Parte Gorena, 595 S.W.2d at 843. There, the decree ordered that the payments be made. Id. ( “‘It is decreed that Respondent (Mr. Gorena) shall pay to Petitioner (Ms. Barber) . . . .’”). The key underlying factor is that whether a court ordered the term as set forth in the decree or final order.

Family law parties should request this key ingredient in any final order or final decree of divorce, or order for modification, custody, child support and or order for visitation. This ensures that the sought after terms can be legally enforced under contempt for non-compliance or failure to follow the court's order.

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