Contempt charge

[Hazel]

Dear Socrateaser,

DH is the Defendant responding to a Motion for Rule to Show Cause and Contempt.  The State is Illinois.  The motion states specifically that DH has "refused to contribute towards any of the educational expenses" of his adult daughter.

We have a cancelled check for spring '06 tuition and fees, endorsed and cashed by the plaintiff, along with an email from her stating that she received the check and acknowledging what it was for.

We live 900 miles away from the Plaintiff.  We believe that she has filed this suit as a form of harassment/bullying, as she and DH do not see eye to eye on best interests of child.

We have a phone conference with an attorney tomorrow.

1)  With the evidence as it is, is there any way that this charge could stand?

2)  If you were DH's attorney, would you seek any sort of penalties against the Plaintiff for knowingly filing this bogus lawsuit?

Thanks so much for your help.

[socrateaser]

>1)  With the evidence as it is, is there any way that this
>charge could stand?

The allegation that you have refused to contribute towards "any" of the child's educational expenses, presumes the fact that you are legally obligated to do so. Although the IL courts have authority to order a parent to pay college education expenses for an adult child, absent an express court order to do so, the parent has no legal obligation to pay, therefore, the fact that you have or haven't contributed is irrelevant, absent a court order instructing you to contribute.

If such an order exists as part of a prior judgment/order of the court, and you have not paid according to the express terms of the order, then you are incontempt, UNLESS you can prove that you did not have the ability to pay (no borrowing power, no income, assets, etc.).

So, you can just read all of your prior orders, and if there's an instruction to pay some amount to the adult child's education, and you haven't paid that amount, then you're incontempt -- otherwise, you're not in contempt. Period.

>
>2)  If you were DH's attorney, would you seek any sort of
>penalties against the Plaintiff for knowingly filing this
>bogus lawsuit?

Assuming that the lawsuit does not state correctly that you are obligated to pay, then yes, I would ask the court to make the other parent pay your attorney fees and costs of suit.

However, there is nothing preventing the court from finding you not guilty of contempt, and then simulaneously ordering you to contribute to the child's education going forward, so while you may escape the sanction for contempt, you may end up paying through the nose anyway.

[Hazel]

Thank you very much.  I'm sorry that in trying to keep my post short and sweet, I didn't give enough information.   DH and BM do have a signed agreement whereby he will pay for 100% of tuition, books and fees while SD and BM split living expenses.  (SD living in BM's home.)CS order was terminated in 6/05.

As always, the story is long and involved... The agreement states that SD must maintain full time student status, which is defined as 12 credit hours, that she must maintain a 2.0 GPA, and that she must forward any pertinent college information to parents upon receipt.  It also clearly states that only once these requirements are met by SD will DH provide his portion of the obligation.

In the Fall semester, SD did NOT meet the agreed upon requirements.  In addition to this, she did several things that were intended to skirt her responsibilities as outlined in the agreement.  

Rather than borrow trouble by refusing to pay for Spring semester, and in an effort to maintain "reasonability", DH informed BM that since the order requires SD to only take 12 credit hours, he would pay for only 12 credit hours.  (SD registered for 18, presumably so that she could overload on classes in order to manipulate the terms of the agreement as she did last semester... this is the part of the story that gets long and involved.)  

The contempt charge states that he refuses to pay for "any" of her education, which is blatently false.  He has paid for 100% of tuition, books and fees for a full time student, exactly as the order states.

1)  Does the fact that SD and BM violated the order FIRST help our case?

2)  Shouldn't the Contempt motion state the exact part of the order that
was supposedly violated?  (It does not.)

3) There is a portion of the contempt order that addresses a completely unrelated issue from the original divorce decree.  Can one contempt motion encompass two different orders without stating such?  

[socrateaser]

>1)  Does the fact that SD and BM violated the order FIRST help
>our case?

Your paraphrasing the text of the order, and I can't possibly interpret correctly based on that.

The statement that because the student must maintain "full time" status, would include all units that exceed more than what is considered minimum full time status. So, if your argument is that you only have to pay for 12 units, then you're gonna lose that argument.

If you have proof that the child has not provided you with the required information concerning her educational status, and assuming that this is a predicate to your being obligated to pay, then you can't be found in contempt.

The fact that the allegation may not be precisely correct, doesn't mean that some other contempt can't be proven at trial. You're entitled to know the charge against you in advance and the plaintiff must prove every element beyond reasonable doubt. So, it would appear that as you've paid some amount that you can't be found in contempt for not paying anything. However, you may be found in contempt for not paying what is required, and that may mean that you will simply be recharged and another contempt hearing will be held at a later date.

Your attorney will read the court order and listen to your facts and tell you if you're in contempt or not. But, based on what you've posted, you're not in contempt on the specific count, but you well may be on a different, as of yet filed, count.

>2)  Shouldn't the Contempt motion state the exact part of the
>order that
>was supposedly violated?  (It does not.)

Not necessarily. It merely needs to state the ultimate facts which if proven would find you in contempt. So, if not paying for 18 units would be contempt and the charge says that you failed to pay part of your court ordered support, then that would be enough to get a contempt, because, as you've already stated, you have paid for 12 units, which is less than 18, i.e., part of your obligation (assuming that you are obligated to pay for any full time status, rather than for a maximum of 12 units, and I'm betting that you are).

However, as the order states ultimate facts which if proven cannot find you in contempt, because it states that you have paid none of your ordered support, then it appears that the present charge is insufficient, as a matter of law, to find you in contempt.

[Hazel]

She says that there is a 95% likelihood that the contempt charge will not fly.

BUT, here's how we REALLY "win":  We now get to pay $1000.00 (minimum) to go to court to fight the contempt charge that we all know to be bogus.  We "win" by not having to pay the plaintiff's attorney's fees once we prove that the charge is bogus.  (Easy enough to do.)We "win" by paying lots of money to draft a new order, which will be eerily similar to the last order, but with MAYBE a compromise thrown our way.

We received this paperwork 3 days ago.  We are 900 miles away, and the court hearing is in 3 days.  Obviously we are under the gun here.  We know we're not in contempt, and so does everyone else involved.  Our attorney is telling us that there's no hope of us recovering attorney's fees.  (We should just be happy that we're not paying the plaintiff's fees.)

1)  So, if I'm to understand this right, we're just totally screwed?

[socrateaser]

>She says that there is a 95% likelihood that the contempt
>charge will not fly.
>
>BUT, here's how we REALLY "win":  We now get to pay $1000.00
>(minimum) to go to court to fight the contempt charge that we
>all know to be bogus.  We "win" by not having to pay the
>plaintiff's attorney's fees once we prove that the charge is
>bogus.  (Easy enough to do.)We "win" by paying lots of money
>to draft a new order, which will be eerily similar to the last
>order, but with MAYBE a compromise thrown our way.
>
>We received this paperwork 3 days ago.  We are 900 miles away,
>and the court hearing is in 3 days.  Obviously we are under
>the gun here.  We know we're not in contempt, and so does
>everyone else involved.  Our attorney is telling us that
>there's no hope of us recovering attorney's fees.  (We should
>just be happy that we're not paying the plaintiff's fees.)
>
>1)  So, if I'm to understand this right, we're just totally
>screwed?

I don't know what the standard for attorney fees on a contempt charge are in IL. However, if you are found not guilty, then you could sue in small claims court for unlawful institution of civil proceeding and/or abuse of process, and ask that your out-of-pocket costs necessary to defending yourself be reimbursed as damages -- which would be transporation, hotel, meals, and of course, attorney fees.

To win, you'll have to have the court find the charge without merit. You should ask your attorney to try to work out an order that says something to that effect. If the other parent is unrepresented, it may fly, and if so, then your small claims action would be a slam dunk.
>
>

[Hazel]

x

[socrateaser]

Suing for "Malicious Prosecution," not "Wrongful institution of civil proceedings," because contempt is a criminal action, not a civil action.

[Hazel]

x

[Hazel]

Things are going pretty well.  Strangely enough, it might be that having this contempt filed against us is the best thing that could've happened.    The opposing side has nothing to gain now, and will most likely lose some of the ground that they previously had.  She will also have to pay for her attorney's fees.  I can't imagine what they were even thinking.

We would REALLY love to get our attorney's fees back from the Plaintiff, as it would send a loud message to not ever pull a stunt like this again.  Plus, the money would buy a lot of future books/tuition/fees.

Our attorney feels quite confident about us recouping the fees, and says that the contempt charge won't even be an issue.

1)  Would it be unethical or insulting to offer the attorney a bonus if she is able to accomplish reimbursement of costs for us?


(Yes I do realize that YOU should actually be the recipient of said bonus, but that is not possible due to your anonymity.  LOL)