In Walter v. Walter, decided by the NC Court of Appeals on August 17, 2021, the court vacated an award of attorney fees in a contempt proceeding arising out of an alleged violation of a custody order because the party awarded fees did not prevail in the contempt proceeding. The court in Walter held that a party cannot be ordered to pay attorney fees if not found to be in contempt. Similarly, in McKinney v. McKinney, 253 NC App 473 (2017), the court of appeals reversed the trial court’s award of attorney fees to mother after concluding the trial court’s findings of fact did not support the conclusion father was in contempt for violating a custody order. See also Ruth v. Ruth, 158 NC App 123 (2003)(fees generally available only to prevailing party, except fees can be awarded to moving party when that party fails to prevail only because alleged contemnor complies with order after contempt proceeding initiated but before hearing).Continue Reading
No Contempt for the Nonpayment of Money Without Actual Evidence of Ability to Pay
In 2015, I wrote two blog posts summarizing the law relating to the use of contempt to enforce orders to pay support. No Default Judgment in Contempt (May 1, 2015) and Contempt: Establishing Ability to Pay (May 8, 2015). Recent appellate opinions justify revisiting this topic.
Gag order? Punishment for talking about a case? Can a court do that?
In an earlier post about high-profile trials, I touched on a trial judge’s authority to restrict photos, audio, video, and broadcast of all or parts of an open court proceeding. To sum it up, the court has broad discretion to restrict dissemination of the proceedings in order to protect the integrity of the process. And under the right circumstances someone who violates the court’s directive can be punished.
But what about another high-profile trial issue: When may a judge prevent people from reporting on or talking publicly about the case? Or punish a person for doing so? Continue Reading
New Regulations Regarding Contempt in IV-D Child Support Cases
Effective January 19, 2017, the federal Department of Health and Human Services (DHHS) adopted a final rule titled “Flexibility, Efficiency, and Modernization in Child Support Enforcement Programs.” 81 Federal Register 93492 (Dec. 20, 2016). This rule mandates numerous changes to the policies and procedures of state child support enforcement programs, but one change of particular importance to state trial courts involves the use of contempt procedures to enforce child support obligations. According to the Comments to the new rules, the change in the federal regulations regarding the use of contempt is intended to ensure that the “constitutional principles articulated in Turner v. Rogers, 564 U.S. 431 (2011)[addressing the rights of obligors in child support contempt proceedings], are carried out in the child support program, that child support case outcomes are just and comport with due process, and that enforcement proceedings are cost-effective and in the best interest of the child.” 81 FR at 93532.
Appointed Counsel in Child Support Cases: How Far Do You Go?
An indigent parent in a child support case is entitled to appointed counsel only for contempt proceedings. But child support cases can be complex. Where should appointed counsel draw the line when representing these parents? Should they limit representation to the actual contempt proceeding or do they delve further? Is the underlying order valid? Is there a good cause to adjust the arrears or is there a change of circumstances justifying a modification of support? Judges must approve the fee applications for the time spent on cases, so counsel should take care to act within the scope of their representation.