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Redacted Argument and Citation for Court Order of Contempt without Hearing

by merlin on May 30th, 2012
  • Sumo

The following is a redacted version of a brief that has been drafted to argue that the Court has power to Order sanctions against a party for wilfull behavior that has been completed wrongfully.  If the effort was made before the action was taken, it would certainly require an action for an injunction, but a wrong completed should still be subject to equitable relief, logically.  This argument is being put forward in favor of that kind of relief:

ARGUMENT AND CITATION TO LEGAL AUTHORITY

            Section 15-1-4(a) of the Official Code of Georgia permits Courts to punish certain acts with contempt through attachment of summary punishment.  Among the matters which may be so punished are “(2) Misbehavior of any of the officers of the courts in their official transactions; (3) Disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”.  “It is well established that courts possess an inherent ‘power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.’”  United States v. Neal, 101 F.3d 993, 996 (4th Cir. 1996); citing International Union, UMWA v. Bagwell, 512 U.S. 821, —-, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994)).  However, the power of the Court to impose criminal contempt penalties is very different in nature to the power to impose sanctions for civil contempt, since criminal contempt is a crime in and of itself, and “requires that the contemnor be afforded fundamental procedural safeguards.”  Id. at 998.

            It is true that indirect contempt of the kind perpetrated in the case at bar involves conduct committed outside the presence of the Court, as opposed to interference with its proceeding that interferes with the orderly administration of justice.  The relief sought by Defendant for the actions taken by Plaintiff is intended to be solely civil and remedial, and no criminal penalties were requested at any time by Defendant or his counsel for the purging of the Contempt, as such action would only serve to punish but would not remedy the problem that the party and her counsel created.  Instead, the relief sought was tailored to address the financial wrong perpetrated against Defendant and abetted by her counsel, and criminal punishment was not his goal or desire.  “A contempt fine is considered civil and remedial if it either coerces [Plaintiff and her counsel] into compliance with a court order or compensates the plaintiff for losses sustained.”  International Union, UMWA at 2553.  Criminal contempt is punitive, seeking to vindicate the authority of the court, while civil contempt is remedial in nature and is for the benefit of the complainant.  Id. at 827-828.

            In the case at bar, the contempt complained of was completed out of the sight of the Court, and was made with the goal of disadvantage of Defendant in a civil proceeding and advantage thereby jointly to both Plaintiff and to her counsel, expressly contrary to the Orders of the Court and to the power of the Court.  At the hearing held before this Court on the issue of appropriate temporary relief in the pending action for divorce, an issue which was raised and disputed by the parties was the pending refund to which they were entitled from their existing income taxes.  Defendant urged that the funds which generated the income taxes, and therefore the refund expected, were from different sources and were not to be equally divided.  Plaintiff urged instead that the two properties were part of the same joint income tax filing and that the entire tax refund therefore represented marital property, and the Court expressly agreed with his urged interpretation at his sole insistence.  This interpretation, which he stood by and affirmed repeatedly, despite the contrary insistence of counsel for Defendant, was simply not true.  “[T]he source of an overpayment of income tax determines the character of the refund and the filing of a joint return does not create an interest by one spouse in the other spouse’s income”.  United States of America v. Anthony, 1999 WL 424884, *2 (D. Ariz. 1999)(Westlaw citation only is available).

            However, Section 15-1-5 of the Official Code of Georgia states that the rules of the respective courts “are binding and must be observed.”  While some issues between the parties are matters of interpretation of legal points, and the technicalities of the fulfillment of these rules are matters that Plaintiff hotly contests, the disposition of almost six thousand dollars is no small affair, and neither Defendant nor his counsel was willing to disregard the indisputable pronouncement of the Court on this matter.  Therefore, the only path which appeared to be open for them to follow to correct the tremendous wrong that had been knowingly perpetrated by Plaintiff and her counsel was to abide by the Order of the Court and then to explain why the Order was unlawful.

            As Ordered, Defendant paid the amount of XXXXX XXXXX to Plaintiff on the XXXXX XXXXX, 2012.  This amount was directed by the Court as being her “interest” in the joint tax return of the parties.  However, the case law on this point makes it clear that this is a matter of federal law interpretation and that Revenue Rulings already expressly address this issue, regardless of how strongly counsel for Plaintiff disputes this.  As a consequence, it was simply not in the power of the Court to state what Plaintiff’s “interest” in the refund might be, and the taking of money from the joint tax refund of the couple was not an appropriate determination for the Court to make.  What is more, upon the execution of the order of the Court in accordance with its terms, at the purposeful and unremedied urging of counsel for Plaintiff, the contempt became willful and complete.

            The willful nature of this contempt, comprehending the power of the party to avoid its sanction entirely, was established by the telephone conversation which counsel for Defendant held with counsel for Plaintiff and recounted in the Affidavit attached to his motion.  Counsel for Plaintiff had urged his false interpretation of the Tax Code upon the Court over counsel for Defendant’s interpretation, despite the blatant nature of his deception as proven by long-established law, but then expressly stated that his client had chosen to ignore the ruling of the Court through her voluntary deduction from the amount paid to Defendant for one-half of the couple’s April bills.  He stated affirmatively that not only did the Court apparently direct that not only the past marital debts of the parties be evenly divided by them in the instant action but also the new debts incurred by them, and therefore explained the deduction from payment by his client as addressing one-half of an amount that represented an attorney fee payment.

            In the Order of the Court following its directing of temporary relief at the conclusion of the two-day hearing held on the XXXXX XXXXX, 2012, it expressly stated that it was not going to grant attorney’s fees, but would not deny them, either.  Instead, it expressly stated that it was going to withhold its judgment on the issue until a later date.  Plaintiff, with the knowing and affirmed collusion of her counsel, has collected some portion of her attorney’s fees in defiance of the Order of the Court, and by depriving Defendant of the moneys that she was directed to pay has thereby defied the Order of the Court regarding attorney’s fees, as well, and taken them from him by failing to pay her fair adjudicated portion of the parties’ existing debts.  This action, also, was completed.  It is, by its nature, willful and intentional and necessarily jointly sanctioned and participated in knowingly by Plaintiff and by her counsel.

            The Court is empowered to find that their actions constituted indirect contempt of the Orders of the Court, and that no defense is available since only remedy and redress may be had.

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