January 2017Volume 47Number 6PDF icon PDF version (for best printing)

Recent case concerning contempt

In September 2016, the First District Appellate Court decided the case of Knoll v. Coyne, 2016 IL App. (1st) 152494. The case involved a mother who did not permit the father to have his court ordered visit with their child. The trial court found that the mother willfully violated the court order. Thus, the mother “is hereby found and declared to be in indirect civil contempt of court for her willful failure to obey the Court’s order as herein stated and for visitation abuse for the time period of June 13 and 14, 2014.”

Nowhere does the trial court order set a purge with which the mother must comply. Since there is no purge, the appellate court held that “accordingly, the civil contempt finding must be vacated.”

The court then goes on to discuss that the actions of the mother could also be characterized as criminal contempt in addition to civil contempt. However, since the court order “did not impose a punishment and only ordered make-up visitation, thus, Marybeth was not punished in any way other than being found in contempt. However, in a criminal contempt proceeding, the contemnor is entitled to similar constitutional protections and procedural rights as in other criminal proceedings.” However, the contemnor cannot assert these rights “unless he receives proper notice of the nature of the charges against him. Accordingly, any party wishing to initiate indirect criminal contempt proceedings must not only notify the alleged contemnor that sanctions are being sought but that the proceedings are criminal in nature.”

Also cited by the Knoll court is the case of In Re the Marriage of Betts, 155 Ill. App. 3d 85 (1987). This case is a very detailed discussion and primer on contempt—civil vs. criminal and direct vs. indirect. It is an absolute must read for any lawyer doing a contempt proceeding. Those of us who practice family law rely on it repeatedly.

The Knoll court noted that the trial court also found that the mother had committed visitation abuse, now called abuse of allocated parenting time, as defined in 750 ILCS 5/607.1. The section number under the Illinois Marriage and Dissolution of Marriage Act, as revised effective January 1, 2016, is 5/607.5.

Under both statutes, new and old, the court may modify visitation, order it to be supervised, order make-up visits, order counseling, order mediation, order attorney fees to be paid by the abuser. The Knoll court then cites In Re The Marriage of Charous, 368 Ill. App. 3d 114, for the same proposition.

The trial court then vacated the order finding the mother in indirect civil contempt and affirmed the order that she engaged in visitation abuse and affirmed the trial court’s order for make-up visitation.

The lesson is that if one is seeking indirect civil contempt, one must tell the court what the purge should be. The cases are replete with language that the purpose of indirect civil contempt is to get compliance with a court order. If that requires incarceration, then the contemnor must be given the keys to the jail cell. The keys are the purge. When the contemnor purges, he or she is released from jail.

If the purpose of the contempt is punishment for violating a court order, that is criminal contempt and all the constitutional rights of a criminal defendant apply.

Make certain that the goal to be achieved is clear before the petition is filed and before any finding is made.

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