Contempt – No Ambiguity Allowed

The Alabama Court of Civil Appeals has reversed a trial court’s contempt finding because the provision violated was ambiguous. The case of Nave v. Nave, Case No. 2040252 (Ala. Civ. App. December 30, 2005) was a post-divorce case. The Madison County Circuit Court had denied the father’s request for custody of the two younger children and for retroactive child support for the older child. The trial court also ordered him to pay $10,873.68 for past-due child support and unpaid college expenses for the mother. The trial court held the father in contempt for failing to pay child support and college expenses. The father appealed.

The appeals court affirmed the trial court’s judgment on custody of the children, finding that there was substatial evidence to support it. The father did not challenge the amount of the arrearage declared, so that stood as well.

As to the findings of contempt, the appeals court noted that the trial court hadn’t specified whether it was applying civil or criminal contempt; the appeals court chose to characterize it as criminal contempt “because it appears that the purpose of the finding of contempt was to punish the father, rather than to insure compliance with the court’s order.”

The appeals court laid out the standard for a finding of criminal contempt:

Rule 70A, Ala. R. Civ. P., governs contempt proceedings arising out of civil actions. Rule 70A(a)(2)(C)(ii) defines criminal contempt as “willful disobedience or resistence of any person to a court’s lawful … order …, where the dominant purpose of the finding of contempt is to punish the contemnor.” To establish that a party is in criminal contempt, the contempt petitioner must prove beyond a reasonable doubt that the party to be held in contempt “was subject to a ‘”lawful order of reasonable specificity,”‘ that the party violated that order, and that the party’s violation of the order was wilful.” L.A. v. R.H., [2040900, Nov. 10, 2005] So. 2d , 2005 Ala. Civ. App. LEXIS 670 (Ala. Civ. App. 2005) quoting Ex parte Ferguson, 819 So. 2d 626, 629 (Ala. 2001) (quoting in turn United States v. Turner, 812 F.2d 1552, 1563 (11th Cir. 1987)).

The appeals court affirmed the trial court’s finding of contempt for the college expenses, rejecting the father’s argument that the courses taken were not required for the degree the mother was pursuing. However, the appeals court reversed the trial court’s finding of contempt for failure to pay child support because the section of the decree describing when child support would stop was ambiguous.

The mother took longer than anticipated to finish her college degree. The parties had agreed (for reasons not clear from the opinion) that child support would stop six months after the mother’s completion of her college studies (without mentioning a date). In a subsequent paragraph, however, the parties included a rambling description of the schedule for the wife’s completion of college.

The appeals court said that neither party had provided a clear description of these paragraphs. “We conclude that the divorce judgment is reasonably susceptible to two meanings and is therefore ambiguous. Consequently, the trial court could not have found beyond a reasonable doubt that the father willfully violated a lawful order of reasonable specificity. See In re Powers, 523 So. 2d 1079, 1082 (Ala. Civ. App. 1988) (“An error in judgment without clear and convincing evidence of bad faith intent is insufficient for a finding of contempt.”)”

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