contempt motion and evidence for evidentiary hearing

[spinner]

Hi,
I have filed a motion for contempt agaist the other parties.
they replied with their motion.

In vue of their motion there are evidence that I will present at the evidentiary hearing for the contempt that are not in my affidavit nor in the other party's.

Is that an issue? do all evidences presented at the evidentiary hearing need to be in an affidavit prior or is this not a requirement ?

[socrateaser]

>Hi,
>I have filed a motion for contempt agaist the other parties.
>they replied with their motion.
>
>In vue of their motion there are evidence that I will present
>at the evidentiary hearing for the contempt that are not in my
>affidavit nor in the other party's.
>
>Is that an issue? do all evidences presented at the
>evidentiary hearing need to be in an affidavit prior or is
>this not a requirement ?

No. A contempt motion is a mini-trial. You will be expected to produce your evidence and witnesses at the hearing. As part of your responsibility, you must tell the other party what evidence you will produce and identify the witnesses you will call to testify, or else you are subject to a possible objection to the evidence/witnesses on grounds of unfair surprise -- which would entitle the other party to a continuance, so that they can have an opportunity to fairly meet the new evidence.

However, if your evidence will be used only to impeach the other party's case, such "rebuttal" evidence does not require advance disclosure. Example:

You claim that the other parent refused to permit you to exercise custody on Date X, and your evidence is the testimony of the postman, who happened to be standing there when the other parent slammed the door in your face and screamed "You can't see your child and I don't care what the court order says!" That evidence/testimony must be produced to the other party in advance, because it's your affirmative case for contempt.

The other party plans to rebut your evidence with testimony from the next door neighbor who will state that the postman who you produce to testify, is not the same postman who was present at the time the alleged conversation took place. That evidence is not discoverable in advance, because it is intended to impeach your witness.

Now, if you take those facts and reverse them, so that the other party is introducing a witness, not to impeach yours, but to show something completely different that's not part of your case, such as the testimony of a police officer who arrested you at the scene because you were carrying a 9mm Glock-17, then that evidence must be produced in advance.

However if you have another witness who saw the incident and who is prepared to testify that the arresting officer took the Glock out of the trunk of the police car and planted it on you immediately prior to the arrest, then that witness does not need to be produced in advance.

And so on...