How do civil contempt cases work? What is the standard of proof: in other words, what must the plaintiff prove in order to prevail in a contempt action?

Kyle is divorced and has primary custody of his two children. Kyle is concerned that his former spouse, Kevin, constantly returns the children hours later than he is supposed to after visiting with them. Kevin has told Kyle repeatedly that he “doesn’t care” about the time he is supposed to bring the kids back, and that he will continue to bring them back “on his own time.”

Mariah received an order of alimony during her divorce from her former spouse Michael. Now, Michael hasn’t paid the appropriate payments ($500 weekly) for the past two months. Michael refuses to talk to Mariah and will not return her calls.

What do Kyle and Mariah have in common? They may both file an action for contempt against their former spouses.

Contempt actions

Contempt, generally, involves a failure to comply with something that the court has ordered. An action for contempt may be appropriate where the defendant has demonstrably disobeyed a court order. Just a few examples include:
• refusing to pay the appropriate amount of child support or alimony ordered by the court;
• refusing to leave the marital home when ordered to do so;
• violating a court order of protection from abuse or harassment;
• violating the terms of a child custody order or the provisions of parenting time.

There are two types of contempt: civil and criminal. In criminal cases, criminal charges are brought against the defendant for refusing to comply with a court order. In civil contempt cases, the plaintiff files a complaint for contempt against the defendant. The purpose of a civil action for contempt is to ensure the defendant’s compliance for the benefit of the plaintiff.

The standard of proof

In order to prove his or her claims, the plaintiff will have to meet the appropriate standard of proof. In cases of civil contempt, this means the plaintiff must prove “a clear and unequivocal command and an equally clear and undoubted disobedience.” 1

This means the plaintiff must show, first, that there was a clear and unambiguous court order. In one case, the Appeals Court held that there was no contempt by the wife when she disclosed certain financial misdeeds of her husband. The court held that the divorce decree was ambiguous as to this disclosure and did not specifically prohibit the wife’s conduct. 2

The plaintiff must show, second, that the defendant clearly disobeyed a court order. In one case, the Appeals Court held that there was no contempt by a wife who refused to allow her small children to visit their father out-of-state, unless an adult escort would accompany them on their flight. The husband filed an action for contempt and prevailed at trial, but the Appeals Court reversed, holding that the mother’s “reasonable” concerns and requests did not amount to a clear and undoubted disobedience of the divorce judgment and custody order. 3

1 Larson v. Larson, 28 Mass. App. Ct. 338, 340 (1990).
2 Sax v. Sax, 53 Mass. App. Ct. 765 (2002).
3 Pedersen v. Klare, 74 Mass. App. Ct. 692 (2009).