Factual Scenario: The Final Judgment and Decree of Divorce has finally been executed by the parties and has been filed with the Court. But, alas, Husband finds that Wife is not willing to pay what he is supposed to receive from her; and Wife is not forthcoming in dividing the U.S. Savings Bonds that were acquired during the parties’ marriage; and she is refusing to convey to Husband certain household goods and furnishings as directed in the Final Judgment and Decree of Divorce.
What remedies does Husband have?
The Court does not have a “police force” or “private investigators” to monitor compliance with Final Decrees or Agreed Entries. There simply is not enough money for the Court to examine whether or not former spouses are following the mandates of their Decrees. In order for the Court to learn about a party’s non-compliance, the former Husband must file a Motion asking the Court to find his Ex-wife in Contempt of Court for her willful failure to comply with certain terms of the Final Decree or Agreed Entry. Another name for the same action is for Husband to file a Motion to Show Cause why Wife should not be held in Contempt of Court. The terms “Motion to Show Cause” and “Motion for Contempt” are used interchangeably. This is a “civil” contempt action, not a “criminal” contempt action. The Motion must also contain other information:
- Notice of Hearing: The Court will have to conduct an evidentiary hearing to determine if Wife should be found in contempt of Court. The Notice will set forth the date and time of the hearing and the name of the Judge or Magistrate who shall conduct the hearing.
- In addition to the Motion for Contempt, there must be a notice advising the former Wife that if she is found in contempt of Court, she may be ordered to pay a fine and that she may be sent to jail. Persons accused of contempt are entitled to constitutional protections, including having an attorney represent him/her. In all the years that I have practiced Family Law, the only times that I have seen a party sent to jail were in relation to non-payment of child support, which is the most common type of contempt proceeding.
If Wife is the non-compliant party, must Husband incur more legal expenses to take her back to Court?
Unfortunately, the answer is “yes”. Again, the system may not seem “fair” but there are no funds or monies available to assist the wronged party. So, the attorney must advise the potential client that there will be a filing fee involved along with expenses to have the former spouse served with the Motion and Notice of Hearing, and attorney fees to take the matter back to Court. In Montgomery County, Ohio, the filing fee for post-Decree contempt matters is $125.00 and service of process in a contempt matter must be accomplished by personal service.
If Wife is found to be in contempt of Court, can she be ordered to pay Husband’s reasonable attorney fees and court costs incurred by him?
The Court has the authority to direct the errant Wife to pay to the former Husband his reasonable attorney fees and court costs expended by him in bringing the matter before the Court. In fact, the threat of having to pay Husband’s attorney fees and court costs may act as an incentive to encourage compliance with the Order. In Montgomery County Domestic Relations Court, the Local Rule allows the court to assess only a nominal $350 in attorney fees against the contemnor unless another attorney is retained to testify about the necessity and propriety of a request for additional attorney fees. Even upon expending additional money to hire another attorney to appear in Court and testify about the actual attorney fees incurred in pursuing the Contempt matter, the Court has discretion whether to Order any additional attorney fees or not.
Is it “worth it” to bring a Contempt of Court or Show Cause Action?
The answer to that question must be made on an individual case-by-case basis. The attorney and client should carefully analyze the costs associated with filing the Motion in relation to the financial value of the monies or goods being sought. In the scenario set forth at the beginning of this article, Husband decided it was worth the legal fees and court costs to take the matter back to Court. In that post-Decree matter, he was seeking payment of several thousand dollars and saving bonds worth approximately $25,000. There are instances, however, where it just does not make economic sense to spend additional monies going after a “deadbeat” ex-spouse.
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Anne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.