My ex lives in CA. I live in WA. There are 5 court orders governing our case-2 orders for atty. fees and a child suport order in CA, one atty. fee order and a child custody order in WA. My ex is far out of compliance with all 5 orders, to the extent that he owes over $150K in support arrearages. I can no longer afford an attorney. I know that contempt of court is hard to make stick, but ability to pay has been established by my ex's own declarations in court. What must I do to get our judge to entertain a motion to find my ex in contempt of the WA state orders?
State/Country relating to question: Washington
I asked the judge directly in our last hearing and he said that he would be giving me legal advice if he answered, so he could not respond to my verbal request to find my ex in contempt.
ANSWER: If your ex lives in CA (and presumably that is where his money is), you need to go to CA and seek enforcement of the WA child support order through the use of judgment enforcement remedies (administrative and judicial) in CA. If not already done, you need to register the WA support order with the appropriate CA tribunal, pursuant to the Uniform Interstate Family Support Act (UIFSA), for enforcement purposes. Once registered as allowd by UIFSA, you as the judgment creditor will have available all of the judgment debt collection remedies available for use against the judgment debtor. And you can (and should) also apply to the local CA child support enforcement agency in CA for support enforcement services.Helpful website: Interstate Enforcement of Child SupportYou might also consider putting the judgment debt obligation in hands of an experienced debt collection lawyer (or private debt collection agency). They will usually take a percentage of whatever is collected, if they are successful. But something is better than nothing. And right now you are getting nothing.Lastly, I would caution about using contempt of court as debt collection mechanism. It usually does not work. BotXXXXX XXXXXne, if you want his body, file for contempt; but if you want money, go after his property, bank accounts, etc. Garnishments, liens, executions, judgment debtor examinations, etc., are usually more productive than a contempt proceeding (and a lot easier, too).As I heard a judge recently say: “If you want his ass, go for contempt; but if you want his assets, go after his pocketbook and forget about contempt.”=========================== If your question has been satisfactorily answered, please acknowledge by clicking the green “ACCEPT” button in the upper right hand corner of your screen. That’s the only way I get paid for answering your question. Also, your positive FEEDBACK comments are important, so be sure to add a few words as requested. And I thank you in advance. (Edited by Moderator)Maria-moderator40463.7665776968
Thank you for your very comprehensive answer, but contempt is specifically what I asked about-not enforcement. The enforcement issue has been explored and my ex has successfully hidden his assets by depositing most inforeign accounts. He is an attorney himself and is very good at litigation, seeing it as a game. It is time to "have his ass" as you say, to send a message that if he steps foot on Washington soil, he will be arrested because he has sought to defy the judge's orders here. I cannot go to CA, but I have this judge's sympathy and recognition that enforcement of money orders is "problematic" with my ex. My best chance is with this judge, and his own atty fee award order is the one I could deal with-if I knew what the judge needs. If it's a filed motion, I can do that, but the lawyer I had retained (when I could afford him) said that "ability to pay" is always a component of contempt and is the reason most contempt efforts fail. In this case, by his own admission, he has the ability to pay. So, that hurdle has been overcome. I need to knw what else must be satisfied.
FURTHER ANSWER: By its very nature, the intent and purpose of a contempt proceeding is ENFORCEMENT of an existing order. In a contempt proceeding, what is critical is not simply having the respondent declared to be “in contempt.” Rather, what is critical is the REMEDIAL “SANCTION” that the moving party seeks to have the court impose. Typically, upon finding the respondent in contempt, the judge will look to the moving party and ask, “OK, he’s in contempt. Now exactly what is it that you want the court to now do?” In other words, what kind of a court order do you now want the court to render that will motivate the respondent to now commence doing what he has been previously ordered to do but is not now doing? That is what is meant by a “remedial sanction” -- a court order that is designed and intended to fix (or “remedy”) and existing problem. Basically, it is simply “judicial arm-twisting.” However, an essential element of contempt is the INTENTIONAL failure to comply with a court order. Intent inherently includes willfulness. Presumably, the existing support order that has been allegedly disobeyed was established based on a judicial “finding” as to the support obligor’s ability to pay. So at a contempt proceeding, ability to pay is presumed. Thus, inability to pay is an “affirmative defense” that must be asserted and proven by the respondent. But it often does not take too much in order to establish that claim. It is for reasons such as these that the lawyer you previously spoke with told you that contempt proceedings often fail, and why I commented in my prior posting here that using contempt of court as debt collection mechanism usually does not work. Also, there is a jurisdictional question as to WHERE -- i.e., in which state --- the alleged contumacious conduct occurred. Although you have a Washington support order, the obligor is in California, so the intentional disobedience of the Washington support order occurred in California, not Washington. So if the contempt matter is to be pursued, you need to do so through the courts of the state of California.Cal Code Code Procedure -- Contempthttp://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1209-1222California forms for Contempt of Court:http://www.courtinfo.ca.gov/forms/fillable/fl410.pdfhttp://www.courtinfo.ca.gov/forms/fillable/fl411.pdfhttp://www.courtinfo.ca.gov/forms/fillable/fl412.pdfhttp://www.courtinfo.ca.gov/forms/fillable/fl415.pdfhttp://www.courtinfo.ca.gov/forms/fillable/fl420.pdfOverview of California law and procedures for Contempt of Court:http://www.kinseylaw.com/clientserv2/famlawservices/enforce/contempt/contempt.html Having a person “held in contempt” just for the purpose of getting such a judicial declaration is pretty much a meaningless gesture. But if such a finding will bring you the satisfaction you are seeking, you obviously ought to pursue the case. And if you get the court to find him in contempt, the next question that needs to be answered is whether he NOW has the PRESENT ability to pay the money that he has failed to pay in the past. (While the failure to have previously failed to pay money when he had the PREVIOUS ability to do so does not mean that he now has the PRESENT ability to pay what is due. And without a finding that he has the PRESENT ability to comply, there will be no basis for imposition of a remedial sanction, notwithstanding the finding of contempt. In any event, the botXXXXX XXXXXne, I suppose, given all the facts and circumstances you are presenting, is simply the question of “What do I have to lose by pursuing contempt of court?” And with that in mind, I’d say -- by all means -- “go for it!” And I wish you all the best. Really.=========================== Having answered your original question and now your follow-up question(s), it is appropriate for you to now click the green “ACCEPT” button, if you have not already done so, so that I may be paid for the answer and information provided. And I thank you in advance for doing so.
30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
I do thank you for the time you took to explain the details of contempt findings, as well as all of the links you provided. You worked very hard to adequately answer my question. Although I will likely waste more time and money if I pursue a finding of contempt, I appreciate that I now have a thorough understanding of the issues at hand so that I can make a better informed decision. It seems that the system was designed assuming people would follow the rules. Unfortunately, my adversary doesn't like rulebooks. Thank you for your assistance.
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