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stevexo, Family Law Attorney
Category: Family Law
Satisfied Customers: 1000
Experience:  30 years helping those with Family legal needs
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Ex was held in contempt on 2 issues. Jail time was issued

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Ex was held in contempt on 2 issues. Jail time was issued under 2nd issue and was suspended once he took care of that 2nd issue (he served 7 days of a 12 month sentence). 1st issue was a little more complex... he was to refinance the marital home in his own name within 24 months or place it for sale with a mutually agreed upon broker. Contempt was issued on his lack of refinancing it. It has now been 13 months since the property should have been placed for sale; however, only 9 months since he was held in contempt. How do I get the marital home issue finalized without risking double jeopardy since the refinance/sale was all in last years contempt petition?
Submitted: 3 years ago.
Category: Family Law
Expert:  stevexo replied 3 years ago.
32 years of family law litigation. Understanding of your concerns,and a good legal knowledge base. Hi glad to help. I need to know what was the sentence on the contempt for issue one, and also was the contempt on this issue based solely upon him not refinancing it. Are you also stating that the home has never been listed at all? Please answer these, so I can give you the correct guidance. Thanks, Steve
Customer: replied 3 years ago.
He was held in contempt on 2 issues... 1. Not refinancing the home in the time the court permitted and 2. Not transferring retirement funds as ordered. Under item 1, there is no A, B, C, etc... Under item 2 is where the jail time comes in... 12 months... and if he transfers the retirement, the remainder of the sentence to be suspended. He paid after 7 days in jail and was released. So I am under the impression that the jail time was issued for item 2 only. He has never listed the house for sale, but has made significant progress in paying it off since being in jail. About $4000 is still owed and I remain liable. He also does not carry insurance on the house voluntarily and lender placed insurance is on it leaving me liable should anyone get hurt on the property.
Expert:  stevexo replied 3 years ago.
Thank you for your answer. This is not a criminal case, thus the doctrine of Double Jeopardy is not something that will apply. The contempt's in this case, even if on the one jail time was issued with a standard purge provision, they are still classified as civil contempt. Because of this, and the nature of Family Relation cases, repeated motions over time are not barred by Double Jeopardy. That is why on a divorce case the court always retains jurisdiction to enter further orders as necessary. Thus just because a person has been once held in contempt on an issue, does not mean that the same issue with the passage of time cannot be heard again if the person is still not in compliance with the Courts order. Your best course of action would be to file another motion for contempt, specifically on the ground that he has not listed the property for sale. This you will be able to prove, and it does not appear he would have any defenses to this allegation. Also it appears he cannot refinance, so the remedy that will work the best for you, is for it to be listed and sold. Also if he truly cannot refinance because of his credit, that is a defense to contempt. He has no such defense as to not listing the home for sale after this passage of this much time. I know you are worried that this motion would be precluded due to the prior hearing, but that is not so, and there is no Double Jeopardy problem. I would file this asap, as the sooner it is heard, the quicker you will be able to get paid. Sincerely, Steve
Customer: replied 3 years ago.
He was held in civil AND criminal contempt. Does that make a difference? Also, as I stated previously, he made some very large payments after his week in jail and the mortgage balance is now only about $4000. Will the judge see this as frivolous? My biggest concern at the moment is that his irresponsibility regarding insurance puts me at risk. If he makes all scheduled payments, the house should be paid off within the year.
Expert:  stevexo replied 3 years ago.
No, a contempt action is either civil or criminal, but not both. I can tell it was civil contempt, as it had a purge provision, ie that if he did the act ordered, he would be let out of jail. That is a purge provision, and criminal contempt is not subject to a purge provision, ever. When you are sent to jail you stay there until the time is up, you do not have the key to your own jail cell, by doing an act, such as in civil contempt. By the fact that he was able to purge the sentence, means it is civil contempt. So this is a non issue. No the Judge will not think this is frivolous at all, quite the opposite. He has failed to follow the directions of the court, that will not be considered frivolous by the court.If you feel that it is a more prudent course of action that you not due this, and let him keep paying, you can make that decision and not file. But even you state that last time the payments didn't start coming until after the contempt hearing. That is a personal decision for you to make, and this remedy is available for you if you desire to go forward. No attorney can make that decision for you, they can just tell you the legal ramifications of your actions. Sincerely, Steve
Customer: replied 3 years ago.
From the order: "It is this Court's conclusion that the Defendant is in civil and criminal contempt of Court for failure to []." In the complaint, should I mention he was already held in contempt in November 2012? Is it too soon to file contempt again?
Expert:  stevexo replied 3 years ago.
Well I certainly cannot debate the fact that this Judge considered this both civil and criminal contempt, if that is what the order stated. But truly if this was appealed by your ex, which it was not, I could not see an appellate court agreeing that this contempt is also criminal. I have had the status of the contempt not defined properly by the court many times, and have had it overturned on appeal. Be that as it may, if this Judge wants to consider it both, that is great for you, as it means that on the criminal contempt the Judge does not have to allow him to purge himself.This is helpful to you, and no it is not to soon to file this again, as he never listed the property, nor has he paid you off, so he would be subject to contempt. Yes you mention the prior motion, and state that at this time the very least he should have done is listed the home. More then enough time has passed for him to do this, so no it is not to early to file at all, and there are no legal impediments in you doing so. Good luck, Steve
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