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# 56 - Contempt of court for Oregon family law lawyers

Monograph # 56                                                        (Revised Aug. 2009)

CONTEMPT OF COURT FOR OREGON FAMILY LAW LAWYERS

© Lawerence D. Gorin, Attorney at Law, Portland, Oregon

Hicks v. Feiock, 485 US 624, 108 S Ct 1423, 99 L Ed 2d 721 (1988),

Gompers v. Bucks Stove & Range Co.,  221 US 418, 441, 31 S Ct 492, 55 L Ed 797 (1911).

Issues discussed:
1.  Nature and purpose of contempt.
2.  Terminology.
3.  Why the difference (remedial vs. punitive)?
4.  Guidance from the U.S. Supreme Court.
5.  Probation as a “remedial” sanction.
6.  Contempt and property division in family law cases.
7.  Personal service required for order to show cause.
8.  Oral “judgment” rendered from the bench.
9.  Attorney fees.
10.  Applicable rules: ORCP and UTCR.
11.  Questions a wise attorney will ask.

    Questions and concerns regarding contempt of court are frequently raised by family law lawyers.  To clarify some issues and provide a better understanding of this subject, I offer the following comments:

1.  Nature and purpose of contempt.

    Contempt proceedings, in general, serve two broad purposes. 

    First, contempt proceedings provide a means for enforcing a court order that is being presently disobeyed.  The court does this by imposing orders (“sanctions”) that are designed to coerce the contemnor into complying with the prior order that the contemnor is violating.  The purpose is to “fix” or “cure” --- hence, to “remedy” or repair ---  a problem that is presently occurring by imposing coercive, “arm-twisting” measures (including incarceration).  ORS 33.015(4).  As soon as the contemnor complies with the prior order of the court, the contempt is “purged” and the “remedial sanction” --- having accomplished its purpose --- comes to an end.  If a sanction intended to terminate a continuing contempt continues after compliance has been achieved, the sanction is no longer “remedial” and thus becomes “punitive.”  (In addition to a sanction imposed to terminate a continuing contempt, an order for the payment money sufficient to compensate a party for loss, injury or costs resulting from contumacious   conduct may also be imposed as a remedial sanction.  ORS 33.105(1)(a).)

    Second, contempt proceedings provide a means for vindicating the authority of the court by imposing orders (“sanctions”) that are intended to punish a person for a past and completed contumacious act for which belated compliance provides no cure.  Oregon law refers to this as a “punitive” sanction since its only purpose is to punish the contemnor.  ORS 33.015(3).

    Under Oregon law, regardless of the label or characterization given to the action by the initiating party, it is the nature and purpose of the sanction that the court ultimately imposes that determines whether the action is a “remedial contempt” proceeding or a “punitive contempt” proceeding.

    Important note:  Punitive sanctions for contempt may be sought only in proceedings initiated by a public prosecutor (attorney general, district attorney, or city attorney).  ORS 33.065(2).  There is no authority for a party to directly seek imposition of punitive sanctions. Consequently, contempt proceedings initiated by private litigants are limited to seeking only remedial sanctions.  Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992).  More importantly, in a contempt proceeding initiated by a private litigant, the court may not impose a punitive sanction.  See Miller and Miller, 204 Or App 82, 129 P3d 211 (2006).

2.  Terminology.

    Prior to the legislature’s 1991 revision of Oregon’s contempt statutes (Or Laws 1991, ch 724, §§ 1-14), what is now “remedial” contempt was referred to as “civil” contempt, and what is now “punitive” contempt was known as “criminal” contempt. 

    The classification of a contempt proceeding is controlled and determined not by the descriptive title initially given to the proceeding but rather by the nature of the sanction imposed.  As explained by the Oregon Supreme Court in State v. Thompson, 294 Or 528, 531, 659 P2d 383 (1983):

    “[W]e have described a penalty for contempt as ‘civil’ when it is imposed in order to compel compliance with an order and will end as soon as the respondent complies, and as ‘criminal’ when it is imposed as punishment for a completed contempt that can no longer be avoided by belated compliance.”  294 Or at 531.

    Although the labels were modernized in 1991 so as to rename “civil” contempt as “remedial” and “criminal” contempt as “punitive,” the substantive distinctions between the two remain unchanged.  A sanction designed to terminate a continuing contempt or to compensate for injury, damage or costs resulting from a past or continuing contempt, previously referred to as civil, is now remedial, ORS 33.015(4), while a sanction imposed to punish a past contempt,  previously referred to as criminal, is now punitive, ORS 33.015(3).

3.  Why the difference?

    Imposing a punitive sanction in a contempt proceeding is the functional equivalent of imposing a sentence in a criminal proceeding.  Just as a defendant in a criminal proceeding must be accorded certain constitutional due process rights as a prerequisite to imposing a criminal sentence, the contemnor in a contempt proceeding must likewise be accorded constitutional due process rights as a prerequisite to imposing a punitive sanction.  Included would be the right to court-appointed counsel, presumption of innocence, requirement that guilt be proven beyond a reasonable doubt and the Fifth Amendment privilege of testimonial immunity.  Further,  the right to trial by jury exists if the case by federal standards is classified as a “serious” contempt. 

    Conversely, if the sanction imposed in the contempt proceeding is designed and intended to remedy a presently-occurring (“continuing”) contempt by coercing the contemnor into complying with the court’s prior order, with the “remedial sanction” coming to an end upon compliance being attained, criminal due process standards need not be applied and the state may establish less onerous procedural protections. 

    It is for this purpose --- to make a clear distinction between the procedures required as a prerequisite for imposing punitive sanctions and those required as a prerequisite for imposing remedial sanctions --- that the Oregon legislature in 1991 enacted the laws now codified as ORS 33.015 to 33.155.

4.  Guidance from the U.S. Supreme Court.

    In Hicks v. Feiock, 485 US 624, 108 S Ct 1423, 99 L Ed 2d 721 (1988), a landmark case that appears to be the stimulus leading to the 1991 reformation of Oregon’s contempt statutes, the Supreme Court clarified and reiterated the fundamental difference between civil (remedial) contempt and criminal (punitive) contempt. 

    Hicks v. Feiock involved a California contempt proceeding for noncompliance with a court order for payment of child support.  Upon being adjudged in contempt of court, the defendant was sentenced to a 25-day jail term.  The sentence was then suspended and the defendant was placed on probation for 36 months, conditioned on full and timely payment of his current support obligation ($150 per month) and, in addition, payment of $50 per month on his $1,650 support arrears.  At that rate, the arrears would have been fully paid in 33 months.  The Supreme Court was unable to determine whether the sanction of probation as imposed by the trial court would terminate upon the defendant’s paying off the arrears after 33 months (thereby “purging” the contempt), or whether the sanction would nonetheless continue for the full 36 months.  The case was remanded to the state court for resolution of that question.  In doing so, the Supreme Court noted that if the probation terminated, the sanction would be remedial but if it continued notwithstanding the defendant’s compliance, the sanction would be punitive.

    Whether the sanction imposed in a contempt proceeding is classified as remedial or punitive is dependent on the substance of the proceeding and the character of the relief that the proceeding will afford.  For civil contempt, the punishment is remedial and for the benefit of the complainant.  For criminal contempt, the sentence is punitive, to vindicate the authority of the court.  Hicks, 485 US at 631, citing Gompers v. Bucks Stove & Range Co., 221 US 418, 441, 31 S Ct 492, 55 L Ed 797 (1911).

    Further, the labels affixed to the proceeding or to the relief imposed under state law (whether it be civil or criminal, remedial or punitive) are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law.  Hicks, 485 US at 631.

    “The critical feature that determines whether the remedy is civil or criminal in nature is not when or whether the contemnor is physically required to set foot in a jail but whether the contemnor can avoid the sentence imposed on him, or purge himself of it, by complying with the terms of the original order.”  Hicks, n 7, 485 US at 635. 

    “If the sentence is a determinate one, from which the contemnor cannot escape by his own actions of subsequent compliance, then the sanction is criminal in nature and may not be imposed unless federal constitutional protections are applied in the contempt proceeding.”  Hicks, 485 US at 637.

    Further, “that a determinate sentence is suspended and the contemnor put on probation does not make the remedy civil in nature, for a suspended sentence, without more, remains a determinate sentence, and a fixed term of probation is itself a punishment that is criminal in nature.”  Hicks, 485 US at 639.

    The distinction between contempt sanctions that are civil (remedial) and those that are criminal (punitive), as discussed by the US Supreme Court in Hicks, has been clearly recognized by the Oregon Court of Appeals, as illustrated in the following cases:

    In State ex rel AFSD v. Burkhart, 80 Or App 681, 684, 723 P2d 374 (1986), the putative father in a filiation proceeding was adjudged in willful contempt for refusing to comply with a court order requiring submission to a parentage blood test.  The trial court’s order recited that the defendant “is sentenced to 30 days in the county jail” but further provided that if the defendant agreed to comply with the court’s order by submitting to the blood test, he would be released from jail “and he will not need to serve the number of days remaining in his sentence.”  Said the Court of Appeals:  “The trial court’s order clearly states that defendant ‘is sentenced to 30 days in the county jail.’  That is a determinate sentence and, thus, this is a criminal contempt. The fact that the court would suspend the balance of the sentence if the defendant were to comply with the court’s order does not change the nature of the order from criminal to civil.”  80 Or App at 683 n 2.

    In Wynne and Wynne, 106 Or App 210, 806 P2d 723 (1991), defendant was found guilty of contempt for disobeying a support order.  Imposition of sentence was suspended and defendant was placed on five years’ probation with the condition that he pay the monthly child support ordered by the dissolution judgment plus a certain additional amount to pay off the arrearage.  There was  no provision in the judgment for defendant to purge himself of the contempt.  Defendant appealed.  HELD:  Reversed.  Citing Hicks, 485 US at 637, for the proposition that “if the sentence is a determinate one, then the punishment is criminal in nature,” the court concluded that placing the defendant on probation for five years constituted a criminal sanction.  “The * * * defendant was given a determinate sentence [five years’ probation] with no opportunity to purge the contempt.  Although the trial court treated the case as a non-criminal matter, it imposed a criminal penalty.  We remand for a disposition consistent with a civil contempt.”  106 Or App at 213.

    In Becker and Becker, 144 Or App 237, 925 P2d 162 (1996), the Court of Appeals provided the following explanation: 
    [A]lthough a court’s remedial contempt powers are expansive, they are not unlimited; that is, the court’s order must be “designed to insure compliance” with the prior order.  ORS 33.105(1)(d).  Here, there was no reasonably foreseeable remedial connection between wife’s alleged contempt (smoking around the children and refusing to turn over husband’s personal property) and the court’s direction that husband’s spousal support and child support arrearages be satisfied.  144 Or App at 244.

    Lastly, in Miller and Miller, 204 Or App 82, 129 P3d 211 (2006), husband was found in contempt, upon wife’s motion, for failing to comply with certain obligations under the parties’ dissolution judgment.  The court ordered confinement for 10 days, with the further prevision that “If [husband] does not come into compliance with the provisions of the Judgment of Dissolution after serving ten (10) days in the custody of the Linn County Supervisory Authority, the Court will enter further sanctions against [husband] as follows: 20 days for next violation and then 40 days confinement for the third violation.”  Husband appealed.  HELD:  Reversed.  “Husband was required to serve 10 days’ confinement even if he complied with the court’s order ”  204 Or App at 85.  The sanction was therefore punitive, not remedial, and could not be lawfully imposed in a proceeding initiated by a private litigant.

5.  Probation as a “remedial” sanction.

    Obtaining a judicial finding that the respondent “is in contempt” is viewed by many attorneys as the “goal” of the contempt proceeding.  (Somewhat akin to the DA getting a conviction in a criminal case.)  But in a proceeding seeking the imposition of a remedial sanction, a finding by the court that the respondent is “in contempt,” by itself and without more, serves no legal purpose. What is critical and essential is the next step: imposition of a sanction designed to coerrce or compel the condemnor’s  compliance with the order of the court order that is being violated, thus “remedying” the contumacious conduct.  Indeed, this is what the proceeding is all about: to have the court use its “arm-twisting” power to compel the contumacious respondent to comply with the prior order of the court, thereby “purging” the contempt and bringing a halt to the sanction that was imposed.

    Pursuant to ORS 33.105(1)(d), upon finding a person to be in contempt on account of noncompliance with a prior court order, the court may attempt to remedy the contempt by imposing “an order designed to insure compliance, * * * including probation.”  

    However, when probation is ordered as the sanction imposed to remedy a presently-occurring contempt, the probation (like any other sanction imposed for the purpose of compelling compliance with a prior order of the court) must come to an end when compliance is attained.  Conversely, if a sanction imposed for the purpose of terminating a continuing contempt does not come to an end upon the contemnor’s own action of complying with the court’s original order (thereby purging the contempt), the sanction loses its character as remedial and becomes a punitive sanction. 

    Stated differently, once the medicine prescribed to cure the illness has worked and health has been restored, there is no longer any need to continue administering the medication.

    As made clear by the US Supreme Court: “[T]hat a determinate sentence is suspended and the contemnor put on probation does not make the remedy civil in nature, for a suspended sentence, without more, remains a determinate sentence, and a fixed term of probation is itself a punishment that is criminal in nature.”  Hicks, 485 US at 639 n 11.

    “A determinate term of probation puts the contemnor under numerous disabilities that he cannot escape by complying with the dictates of the prior orders, such as:  any conditions of probation that the court judges to be reasonable and necessary may be imposed;  the term of probation may be revoked and the original sentence (including incarceration) may be reimposed at any time for a variety of reasons without all the safeguards that are ordinarily afforded in criminal proceedings; and the contemnor’s probationary status could affect other proceedings against him that may arise in the future (for example, this fact might influence the sentencing determination made in a criminal prosecution for some wholly independent offense).”  Hicks, 485 US at 639 n 11.

    Again (just to emphasize the point), if the sanction imposed on the contemnor does not come to an end upon the contemnor’s complying with the underlying order that is being disobeyed, the sanction --- be it probation or otherwise --- is, of necessity, punitive and not remedial.  And under Oregon law, contempt proceedings initiated by private litigants are limited to seeking only remedial sanctions.  Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992).  More importantly, in a contempt proceeding initiated by a private litigant, the court may not impose a punitive sanction.  Miller and Miller, 204 Or App 82, 129 P3d 211 (2006).

    It is not infrequent, particularly in contempt proceedings involving nonpayment of child support, for the court, as a remedial sanction “designed to insure compliance with a prior order of the court,” to place the contemnor on probation for an indeterminate period of time, continuing for so long as the underlying support order continues to exist, conditioned on the contemnor’s making the support payments as previously ordered.  So long as the contemnor thereafter complies with the underlying support order, the sanction of probation simply continues, unabated and without end, there being no opportunity for the contemnor to purge the contempt and cause the probation to terminate.  When imposed as a remedial sanction, probation for an indeterminate period, with no opportunity to purge the contempt and terminate the sanction, is no different than probation for determinate period (as in Wynne and Wynne, id.).  Without  opportunity to purge the contempt and terminate the sanction, the sanction is punitive rather than remedial

    The point is well-illustrated in Wynne and Wynne, 106 Or App 210, 212, 806 P2d 723 (1991).  Defendant was adjudged in contempt for disobeying a support order.  As a remedial sanction, defendant was placed on five years’ probation with the condition that he comply with the existing support order and pay off the arrearage.  No opportunity was given for the defendant to purge the contempt and terminate the court-imposed sanction.  Defendant appealed.  Said the Court of Appeals:  “The * * * defendant was given a determinate sentence with no opportunity to purge the contempt. Although the trial court treated the case as a non-criminal matter, it imposed a criminal penalty. We remand for a disposition consistent with a civil contempt.”  106 Or App at 213.

    The other problem with using probation as a remedial sanction “designed to insure compliance with a prior order of the court,” is the question of what to do in the event to future noncompliance.  Summarily revoking the probation simply of the basis of the failure to make the support payments previously ordered (without an entirely new contempt action) would amount to a denial of due process rights.  Further, if the probation is revoked, what then?  Is the contemnor to be then incarcerated?   If so, the proceeding most certainly becomes punitive and loses its remedial classification..

    In sum, probation as a contempt sanction, whether for a fixed duration or indefinitely, cannot be classified as a remedial sanction without inclusion of a “purge provision.”  Such a sanction, without a purge provision, becomes a punitive sanction and, as such, may not be imposed unless federal constitutional protections are applied in the contempt proceeding.  See Hicks, 485 US at 632 (In proceedings for contempt of court, “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”).

6.  Contempt and property division in family law cases.

    There is a popular misconception that “contempt proceedings cannot be used to enforce property divisions.”  The case most often cited for this proposition is State ex rel Stirewalt v. Stirewalt, 7 Or App 544, 492 P2d 802 (1972).

    However, the quoted statement from Stirewalt is misleadingly incomplete and inaccurate.  As the Court of Appeals subsequently explained in Drake and Drake, 36 Or App 53, 583 P2d 1165 (1978):

    “The statement by this court in State ex rel Stirewalt v. Stirewalt, 7 Or App 544, 546, 492 P2d 802 (1972), that Oregon courts cannot enforce the property settlement provisions of divorce decrees by contempt proceedings, is overly broad.  The statement was intended to apply only to decree provisions requiring property settlement money payments such as that involved in the Stirewalt case.”   36 Or App at 58.

    The rule barring contempt proceedings from being used to enforce property division money awards is presently codified in ORCP 78 B and C.  ORCP 78 B specifically authorizes a judge to “enforce an order or judgment directing a party to perform a specific act by punishing the party refusing or neglecting to comply therewith, as for a contempt as provided in ORS 33.015 to 33.155.” 

    However, as expressly stated in ORCP 78 C, ORCP 78 B does not apply to an order or judgment for the payment of money, except orders and judgments for the payment of sums ordered pursuant to ORS 107.095 [pendente lite limited judgments] and money for support, maintenance, nurture, education, or attorney fees, in (1) actions for dissolution or annulment of marriage or separation from bed and board and (2) proceedings upon support orders entered under ORS chapter 108, 109 or 110, or under ORS 416.400 to 416.470, 419B.400 or 419C.590.  In sum, unless the money award is for support or attorney fees, it will usually be classified as property division and thus not enforceable by contempt. 

    While property division provisions for the payment of money are not enforceable through contempt proceedings, other court orders pertaining to property division but not involving direct payment of money may, depending on circumstances, properly lend themselves to enforcement by contempt.  See, e.g., Drake and Drake, 36 Or App 53, 583 P2d 1165 (1978) (husband’s failure to comply with order requiring delivery of property deed to wife);  Fitzgerald and Fitzgerald, 70 Or App 625, 690 P2d 1114 (1984) (wife sold bicycle and bicycle parts that had been awarded to husband by dissolution judgment; trial court had equitable authority to grant husband compensatory money judgment against wife for $1,000, being the value of the property sold); St. Sauver and St. Sauver, 196 Or App 175, 100 P3d 1076 (2004) (husband’s post-judgment actions of repossessing an automobile that had been awarded to wife and interfering with wife’s retrieval of personal belongings from what had been the family home constituted resistance to and obstruction of the court’s judgment; wife awarded compensatory money damages); and Patchett and Patchett, 156 Or App 69, 964 P2d 1114 (1998) (“Skippy,” the wallaby that had been in wife’s possession, was awarded to husband; before husband was able to retrieve Skippy from wife’s possession, Skippy mysteriously escaped from his cage in wife’s backyard and was never seen again; trial court held wife in contempt; reversed on appeal but only because of appellate court’s conclusion of insufficient evidence as to wife’s willfulness).

7.  Personal service required for order to show cause.

    Upon initiating a contempt proceeding, ORS 33.055(5)(a) requires that the “defendant shall be personally served with the order to appear in the manner provided in ORCP 7 and 9.” 

    ORCP 9 generally requires that service on a represented party be made by serving that party’s attorney.  However, the last sentence of ORCP 9 B specifically states that “Service of any notice or other paper to bring a party into contempt may only be upon such party personally.”  Therefore, service on the contemnor’s attorney is not sufficient.

    Note:  A party to a dissolution judgment may waive the personal service requirement by including in the dissolution judgment a provision so declaring and designating an alternate agent for purposes of receiving future contempt notices.  ORS 107.835.

8.  Oral “judgment” rendered from the bench.

    As a general rule, in the absence of a written order or judgment document, a judge’s oral pronouncement or decision rendered from the bench does not constitute an enforceable judgment.  See Barone v. Barone, 207 Or 26, 294 P2d 609 (1956); Wrona and Wrona, 66 Or App 690, 674 P2d 1213 (1984).  Also see Kay v. David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d 1389 (1987) (judge’s oral decision from the bench barring formal recitation of prayer at upcoming high school graduation ceremony was not an order or a judgment; oral pronouncement was not an “effective judgment” until reduced to written form and signed by the judge, which did not happen until after the graduation ceremony had occurred).

    However, ORS 33.015(2)(b) defines contempt not only as disobedience of court orders and judgments but also as “disobedience of, resistance to or obstruction of the court’s authority.”  Therefore, a judge’s verbal command directing a party to perform a specific act (e.g., “father shall return child to mother by 5 p.m. today”) or to refrain from engaging in certain conduct (e.g., ”wife shall immediately cease and desist from making any more telephone calls to husband’s employer”), even though not in written form, should not be viewed as being of no consequence.  (See caveat below.)   In the event of a litigant’s willful defiance or disregard of a judge’s verbal command, lack of a written order or judgment signed by a judge most likely will not be viewed as a sufficient defense against a subsequent action for contempt of court.

    Nonetheless, careful consideration should be given by a private litigant before initiating a contempt proceeding in reaction to an opposing party’s defiance of judicial authority.  Such a proceeding may not be of any benefit to the initiating party, particularly if the alleged contempt consists only of a past and completed act of willful defiance.  Contempt proceedings initiated by private litigants are limited to seeking only remedial sanctions.  Dahlem and Dahlem, 117 Or App 343, 844 P2d 208 (1992).  And in such proceedings the court may not impose any punitive sanctions.  Miller and Miller, 204 Or App 82, 129 P3d 211 (2006). 

    Consequently, in the absence of a continuing contempt, the court’s remedial sanction authority in a contempt proceeding brought by a private litigant is limited, since the only sanction the court may impose is an order requiring the contemnor to pay money to the aggrieved party as compensation for injury, damage or costs sustained by the aggrieved party as a result of the past contempt.  If the aggrieved private party bringing the contempt proceeding has sustained no injury, damage or costs, and there is no continuing contempt, there is nothing the court can do, regardless of how egregious the contumacious act.  For many aggrieved litigants, this may not be viewed as an entirely satisfactory result.

    Caveat and very important practice tip:  As officers of the court (see ORS 9.010), prudence and practicality dictate that lawyers not be totally insensitive to a judge’s verbal decisions and commands.  As is often said:  Know your judge.  Practitioners are well advised to use a little common sense, together with respect for the court, when advising clients as to what course of action to follow after a judge has rendered an oral decision or command but prior to there being a written order or judgment.


9.  Attorney fees.

    Typically, contumacious conduct does not result in a party incurring attorney fees.  For example, disobedience of a court order requiring a child support obligor to maintain an existing life insurance policy’s designation of a former spouse as beneficiary does not result in the former spouse incurring attorney fees.  However, in those limited instances in which the nature of the contumacious conduct causes a party to incur attorney fees, ORS 33.105(1)(e) allows the court to order “payment of all or part of any attorney fees incurred by a party as the result of a contempt of court.”  Such might occur, for example, if the divorcing spouses are ordered to jointly sign a deed in lieu of foreclosure transferring jointly owned real estate back to the bank so as to avoid the bank’s threatened mortgage foreclosure proceeding.  If one spouse, in defiance of the court’s order, refuses to comply, resulting in the other spouse incurring legal expenses in having to respond to the bank’s foreclosure proceeding, ordering payment of attorney fees as a remedial sanction for the contumacious conduct, pursuant to ORS 33.105(1)(e), would be entirely appropriate. 

    The provision of ORS 33.105(1)(e) allowing for payment of all or part of any attorney fees incurred by a party as the result of a contempt of court does not refer to an award of attorney fees in connection with the prosecution of the contempt proceeding itself.  Rather, ordering the payment of resulting legal expenses pursuant to ORS 33.105(1)(e) constitutes a sanction that remedies the contempt by compensating a party “for injury, damage or costs resulting from” contumacious conduct, as allowed by ORS 33.015(4).

    Ordering payment of attorney fees as a remedy for contumacious conduct pursuant to ORS 33.105(1)(e) is, in essence, a claim for compensatory damages.  As such, it is not subject to the procedural requirements of ORCP 68.  See ORCP 68 C(1)(a) (ORCP 68 procedures do not apply when “such items [attorney fees] are claimed as damages arising prior to the action”).  If imposition of this remedial sanction is sought, the moving party, at trial, should present evidence sufficient to prove the attorney fee expenditure that was incurred due to the contumacious conduct.  If the respondent’s actions are adjudged as contumacious and the evidence establishes the amount of the resulting legal costs incurred, the contempt judgment may order the payment thereof as a remedy pursuant to ORS 33.105(1)(e), with the judgment stating the specific dollar amount.  If the allegations of contempt are not proven, there would be no basis for ordering payment of attorney fees, at least not as a sanction to remedy conduct claimed as contumacious.

    In contrast to ordering payment of attorney fees as a remedial sanction under ORS 33.105(1)(e), which necessarily requires an affirmative adjudication of contempt, ORS 107.445 gives the court discretionary authority in a contempt proceeding in an action for marital annulment, dissolution or separation to “render a judgment awarding to a party [in any contempt proceeding] * * * a sum of money determined to be reasonable as an attorney fee at trial and on appeal therein.”  ORS 107.445 is not a “prevailing party” statute.  Consequently, ORS 107.445 allows the court to award attorney fees in a contempt proceeding to either party (or even to both parties) without regard to the outcome of the case.  Such an award may be made even if there is no finding of contempt. 

    A party seeking an award of attorney fees pursuant to ORS 107.445 must assert the claim in a pleading, as required by ORCP 68 C(2)(a).  The determination as to both entitlement and amount of such an award is a post-trial matter, controlled by ORCP 68 C(4).  Further, attorney fees awarded pursuant to ORS 107.445 are separate and apart from any order for payment of attorney fees imposed as a remedial sanction under ORS 33.105(1)(e).  Lastly, an award of attorney fees under ORS 107.445 may be made in addition to the imposition of a remedial sanction for attorney fees under ORS 33.105(1)(e).

    But see Young and Young, 172 Or App 108, 17 P3d 577 (2001), stating that “ORCP 68 applies when attorney fees are imposed as a remedial sanction in a contempt proceeding.”  This statement is confusing and perhaps somewhat misleading.  It is unclear as to whether the attorney fees ordered by the trial court in Young were intended as a remedial sanction to compensate and remedy the moving party’s economic loss that resulted from the contumacious conduct, as allowed by ORS 33.105(1)(e), or whether the award was made as a statutory award of attorney fees for the contempt proceeding itself, as allowed by ORS 107.445.

    If the contumacious conduct in Young resulted in the moving party having incurred legal expenses, ordering the contemnor to make reimbursement to the moving party as a remedial sanction under ORS 33.105(1)(e)  would have been appropriate.  Presumably, the dollar amount of the reimbursement would have to be proven by evidence offered during the contempt trial, thereby allowing the court to fix the amount of the remedial sanction.

    However, if the court’s intent was to make a discretionary award of attorney fees pursuant to ORS 107.445 for the contempt action itself, the determination would be appropriately subject to the procedural requirements of ORCP 68.  For purposes of ORCP 68, attorney fees refers to “the reasonable value of legal services related to the prosecution or defense of an action.”  ORCP 68 A(1).  Further, ORCP 68 does not apply to situations where attorney fees “are claimed as damages arising prior to the action.”  ORCP 68 C(1)(a).

    Given the foregoing analysis, it is most difficult to understand just how the Court of Appeals concluded in Young that “ORCP 68 applies when attorney fees are imposed as a remedial sanction in a contempt proceeding.”  If that statement is ever challenged through a subsequent appellate case, it would not be surprising if the court were to clarify, if not retract, the statement.

10.  Applicable rules: ORCP and UTCR.

    ORS 33.055(12) says that proceedings seeking imposition of remedial sanctions for contempt are not subject to ORCP except as may be provided in rules adopted under ORS 33.145.(which authorizes the Supreme Court to adopt rules to carry out the purposes of ORS 33.015 to 33.155).  Pursuant to the authority given by ORS 33.145, the rules adopted by the Supreme Court for contempt proceedings are set forth as UTCR 19.010 to 19.050.

    UTCR 19.040(1)(a) says, in essence, “Except as otherwise provided in this chapter, ORCP applies to contempt proceedings for remedial sanctions under ORS 33.055.”  The “except as otherwise provided” rules are listed in UTCR 19.050(5), which says that the following ORCP do not apply:

      3 -    Commencement of actions
      5 -    Jurisdiction in rem
    21 C -    Preliminary hearings on pretrial motions
    21 D -    Motion to make more definite and certain
    21 E -    Motion to strike
    23 A -    Amendment to pleadings
    24 A -    Permissive joinder of claims
    24 B -    Forcible entry and detainer and rental due
    25 A -    Amendment or pleading over after motion; non-waiver of defenses
        or objections.
    32 -    Class actions
    54 A(1) -    Voluntary dismissal of action by plaintiff
    54 E -    Compromise; effect of acceptance or rejection
    66 -    Submitted controversy without formal action
    73 -    Judgments by confession
    81 A -    Definitions for ORCP 81 through 85
    81 C -    Adverse claimants in provisional process matters
    82 A(3) -    Surety bonds for attachment or claim and delivery
    84 -    Attachment
    85 -    Claim and delivery.

    Net result:  ORCP applies to contempt proceedings for remedial sanctions, except those particular ORCP rules listed above.


11.  Questions a wise attorney will ask.

    Experience shows that in many if not most contempt proceedings initiated in family law cases, the alleged acts of contempt, if closely analyzed, do not involve contumacious conduct that is presently occurring, i.e., a “continuing contempt.”  Rather, what is all too often alleged is in fact a past act, already completed, for which belated compliance would provide no cure, i.e., a “completed contempt.”  Filing a contempt proceeding that seeks to impose a sanction intended to “remedy” (rather than punish) completed transgressions that have already occurred and that are no longer subject to corrective action is wholly inappropriate.

    Before commencing an action seeking imposition of remedial sanctions based on allegations of contumacious conduct, the following questions ought to be carefully considered:

    1.  What is it, specifically, that the respondent is presently doing that he or she has been ordered by the court not to do, or, conversely, what is it, specifically, that the respondent has been ordered to do but is presently not doing?

    2.  What is it, specifically, that the court can now do by way of an “arm-twisting”  order, i.e., a “remedial” sanction, intended to coerce the contemnor to change behavior and comply with the court’s order (either by doing what the court has previously ordered to be done but is not presently occurring, or by disengaging from conduct presently occurring that has been prohibited by prior court order)?

    An attorney whose client seeks to have the former spouse “charged” with contempt of court should decline involvement if the conduct being complained of is not such as can be halted or altered, i.e., fixed, repaired or “remedied,” by the imposition of a coercive order from the court.

    Similarly, an attorney who is called on to defend a client against a motion seeking the imposition of remedial sanctions for contempt of court (other than a remedial sanction of compensation for loss, injury or costs resulting from the contempt) needs to closely examine the specific acts alleged to constitute contempt (which are required to be set forth by ORS 33.055(4)).  If what is alleged does not involve a “continuing contempt” but instead amounts to a “past act, already completed, for which belated compliance provides no cure,” counsel should immediately file a motion to dismiss, pursuant to ORCP 21 A, for failure to state ultimate facts sufficient to constitute a claim that is appropriate for imposition of remedial contempt sanctions.

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Footnotes:
    Fn 1.  In Niman and Niman, 206 Or App 400, 136 P3d 1186 (2006), the trial court record referred to husband's conduct as having been “contemptuous.”  On appeal, the Court of Appeals (opinion by Judge Rick Haselton), noted that the proper term is "contumacious," citing Black's Law Dictionary 315 (8th ed 1999) (defining "contumacious conduct" as "[a] willful disobedience of a court order"); id. at 354 (defining "contumacy" as "[c]ontempt of court; the refusal of a person to follow a court's order or direction").   206 Or App at 411 n 5.

    Fn 2.  ORS 33.105(1)(b) and 33.105(2)(c) limit “confinement” as a contempt sanction under Oregon law to a maximum duration of six months.  This limitation results in contempt being classified as a “petty” offense (rather than a “serious” offense) and eliminates the otherwise applicable constitutional right of trial by jury.  See Cheff v. Schnackenberg, 384 US 373, 86 S Ct 1523, 16 L Ed 2d 629, (1966); Bloom v. Illinois, 391 US 194, 88 S Ct 1477, 20 L Ed 2d 522 (1968); and Muniz v. Hoffman, 422 US 454, 95 S Ct 2178, 45 L Ed 2d 319 (1975.  See also Hicks v. Feiock, 485 US 624, 632 n. 5, 108 S Ct 1423, 99 L Ed 2d 721 (1988) (“We have recognized that certain specific constitutional protections, such as the right to trial by jury, are not applicable to those criminal contempts that can be classified as petty offenses, as is true of other petty crimes as well.”  [Citing Bloom v. Illinois.])  Consequently, ORS 33.055(7) and 33.065(6), barring jury trials in Oregon contempt proceedings, do not infringe on federal due process rights. 



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LAWRENCE D. GORIN
Attorney at Law
6700 S.W. 105th Ave., Suite 104
Beaverton, Oregon  97008
Phone:  503-716-8756
Fax:    503-646-1128
E-mail:  LDGorin@pcez.com
http://ldgorin.justia.net/index.html