Contempt examined

Breaking down a split decision on indirect civil contempt

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

In a 2-to-1 decision, the 1st District Appellate Court reversed an indirect civil contempt finding on the grounds it was actually indirect criminal contempt. See In re Marriage of Pavlovich, 2019 IL App (1st) 172859. This split decision highlights the tricky world of contempt.

In Pavlovich, the divorce judgment awarded the wife a condominium and prohibited her from leasing the property until she refinanced it.

In violation of the judgment, the wife leased the condominium, prompting the husband to bring a petition for rule to show cause seeking indirect civil contempt. The trial court found the wife in indirect civil contempt and ordered her to turn over all of the rental proceeds to the court clerk in order to purge her contempt.

On reconsideration, the court amended its order to require the wife to give half the proceeds to the husband instead of the court clerk.

In a split decision, the appellate court reversed the contempt ruling. The majority held the wife was in indirect criminal contempt, not indirect civil contempt, because the purge was not an inducement to future compliance of the judgment; it was punishment for her violation of the judgment.

Because the wife did not receive adequate notice or procedural protections necessary for criminal contempt, the appellate court reversed the trial court’s contempt finding, monetary sanctions and award of attorney fees.

Justice Michael B. Hyman dissented, opining that the contempt finding was designed to coerce the wife to comply with the divorce judgment by terminating the lease on the condominium and not leasing it again until she refinanced it. The fact she was required to pay the husband half of the rent she received did not, in Hyman’s opinion, convert the indirect civil contempt into criminal contempt.

The majority and dissenting opinions in Pavlovich provide a useful primer on the nuances of civil contempt versus criminal contempt.

Civil contempt involves filing a verified petition for rule to show cause and seeking sanctions designed to coerce future conduct, namely, compliance with a valid court order or judgment. If the petition provides sufficient facts to demonstrate a prima facie case, the rule will issue and be returnable on a future date for the litigant to show why he or she should not be held in contempt of court.

A contemnor must have the opportunity to purge the contempt by complying with the court order or judgment. Any fine imposed must be paid to the court clerk, not to the other party as restitution.

In contrast, criminal contempt punishes a contemnor for past actions that cannot be undone or purged. With indirect criminal contempt, a separate and independent complaint to adjudicate criminal contempt is filed, notice of the charges and the potential for criminal sanctions must be provided and the burden is on the movant (the state’s attorney or private counsel) to prove guilt beyond a reasonable doubt.

Criminal contempt entitles the litigant charged with contempt to greater constitutional protections and similar procedural rights afforded to a criminal defendant, including the right to:

  • A jury trial when incarceration exceeds six months or the fine exceeds $500
  • An attorney, change of judge and a public trial
  • Be charged with a written complaint, petition or information, not just a petition for rule to show cause
  • Personal service and to know the nature of the charges
  • File an answer and to present evidence, subpoena witnesses and confront and cross-examine witnesses
  • The presumption of innocence
  • The right against self-incrimination
  • Be proven guilty beyond a reasonable doubt
  • Be admonished as to his or her constitutional rights

Had the trial court in Pavlovich meant to impose criminal contempt sanctions on the wife, surely it violated her due process protections by not providing these procedural safeguards.

However, as the dissent underscores, the trial court’s order is subject to two differing interpretations. The majority concluded the trial court was not seeking to compel the wife’s future compliance with the judgment, rather, it meant to punish her for leasing the condominium and sanctioned her by imposing a fine payable to the husband as restitution.

The dissent, however, interpreted the order as a means of inducing future compliance with the judgment by dividing the proceeds of the rent equally between the parties and allowing the wife to purge the contempt simply by terminating the lease and not leasing the condominium again until she refinanced it.

Pavlovich demonstrates how important it is for lawyers to present the proper petition for contempt depending on the relief they seek. It is equally important for judges to be clear in their findings as to the purpose and nature of the contempt and to afford litigants the appropriate level of procedural protections.

If the purpose of the contempt is to induce compliance with a court order or judgment, then it is civil contempt, and there must be an opportunity to purge the contempt.

If the purpose is to punish, then it is criminal contempt, and the procedural protections and due process rights of a criminal defendant apply.

For more on contempt, read the go-to case of In re Marriage of Betts, 200 Ill. App. 3d 26 (4th Dist. 1990).